Law House

Market Segmentation

2012-07-09T03:46:00.002-07:00

The market segmentation is very important for an organization like Britvic. The elements of the market Segment process are outlined below:

1. Establish a sample of customers which will represent the different decision-makers found in the specified market;

2. Record personal details about the decision-makers. The standard categories for profiling customers are:

(a) demographic;

(b) Geographic;

(d) Phychographic.

3. Understand the real needs of customers and list the benefits they are seeking;

4. Verify the concluding clusters can be regarded as segments;

5. Bring together those micro-segments that illustrate similar patterns of importance for the benefits in order to form clusters.

With the segments uncovered it is time to identify which of them we are targeting:

2. Establish the attractiveness of each segment to a company;

3. Determine the relative competitive strength of a company;

4. Establish a sample of customers which will represent the different decision-makers found in the specified market.

Benefits of market segmentation & Targeting:

1) Lower marketing expenses by targeting certain segment. Good for small budget companies;

2) allows a business to clearly identify their target audience;

3) Increased effectiveness in marketing campaign designed to attract that segment.

4) allows a business to develop specific marketing plans to reach particular segments;

5) Tailoring product offering to a certain market segment improves customer satisfaction.

The process of Market segmentation

Market segmentation is when the market is split into groups, so that product and service can be marketed to customers more effectively. It is a practice undertaken by marketers to identify the group of consumers. The division of a market into different homogeneous groups of consumers is known as also market segmentation. Right market segmentation can help a business to better understanding sub-section of their market, to learn what makes them unique and how differ from one another. They can learn that who is their buyer, who is more like their product, where is more profitable to market their product. They can also know the customers habit, interest, lifestyle, hobbies in different areas through market segmentation. The learning can help any kinds of business to target market and to bring new product.

Market segmentation has build up depend on the following elements.

Behavioural Segmentation: It is based on variable such as customers usage rate, benefits sought, company brand loyalty, user status, occasions and readiness to buy etc.

Psychographic Demographic Segmentation: It is based on the customer’s interests, activities, options, hobbies, lifestyle, perception of selling company and habits.

Geographic Segmentation: It is based on regional variables such as region, climate, population density, and population growth rate etc.

Geo-Demographic Segmentation: It is mix of Geographic and Demographic variables which included regional with the ethnicity, education, occupation, income and family status of customers.

Targeting:

Target market is defined as being a set of buyers who share common needs or characteristics that the company decides to serve. The selection of potential customers to whom a business wishes to sell products and services is targeting. Successful marketing find a target audiences. Every business set a target after their market research. The targeting involves segmentation the market choosing which segment of the market is appropriate and determining the product that will be offered in each segment.

Three method of targeting:

Undifferentiated marketing is a market-coverage strategy in which a firm decides to ignore market segment differences and go after the whole market with one offer. It assumes everyone is the same and aims a particular product at everyone.

Differentiated marketing is a market-coverage strategy in which a firm decides to target several market segments and designs a separate offer for each. It relies on mass distribution and mass advertising for its success. It aims the products at specific segments in the market. It applies for same products but different segmentation with different promotion method.

Concentrated marketing is a market-coverage strategy in which a firm goes after a large share of one or a few submarkets. Through concentrated marketing, a company achieves a strong market position in the segments it serves because of its greater knowledge of the segment’s needs and the special reputation it required.

Benefits of segmentation and targeting to Britvic:

Britvic following all kinds of market segmentation and they are applying market segmentation for targeting. As a result they are getting more and more benefits. They recognize that the poorest customers needed an affordable source of Vitamin C and they have made a small glass bottle of juice and the idea was successful from the Geo-Demographic Segmentation. Britvic has more soft drinks brands in its portfolio than any other UK manufacturer from the Psychographic Demographic Segmentation. They try to bring a new drink for old people with no sugar from the Geographic Segmentation. Britvic is now the number tow branded soft drinks business in the UK after Coca-Cola Enterprise Ltd. And the number one supplier of branded still drinks in the UK. They provide fully serviced vending machines for appropriate location, many of which are in the public sector. They also supply a wide range of product to approximately 2oo, ooo outlets across the country. From the Geographic Segmentation They have manufacturing plants in seven UK locations. Britvic has a constant flow of new product development. The packaging is expected to reflect the new target market.

So from the above success of Britvic we can say that Britvic is applying all the process of Market segmentation and targeting the customers and finally they are getting benefits.

Marketing theory in relation to each of the 4p’s.
Marketing theory is a body of through decided to selling a product in a specific market. Most generally it is a method of using mass media to convince consumers that a product is something they need. Through marketing theory the products firms can create a successful marketing mix of the right product sold at the right price in the right place using more suitable promotion. Four p’s are known as marketing mix. These 4p’s are Product, Price, Place and Promotion.
Product:
Product is the most important in any kind of business. A company has to launch a product which is appealing to customers and makes them want to buy. For a product decision the customers should follow the following things;
Brand name, Styling, functionality, Quality, Safety etc.

Level of Product:
The are 3 levels of product, which are as:
i. Core product
ii. Tangible product
iii. Augmented product.
Core product: core product means for which reasons the customer are buying the product. For example peoples are buying the mobiles for the talking and using internet.
Tangible product: tangible means the colour, sizes, quality and design of the product. Its simply means that the output of the product.
Augmented product: its means that the benefit the service the product. For example the mobile company giving warranty and guaranty for 2 years.

Product Line:
A company creates a group of products, which has in common most of their main characteristics. For example Uniliver Company ltd. Creation different kinds of product Soup, Toot past, foam etc.
Product mix- an organization creates many products and, of course, sells them. So, the product mix is everything organization sells.
Product length- in a company the total number of product item creating that is product length.
Product line depth- A product line contains a number of items, this number being called product line depth.
Product width- An organization creates a number of product lines. The total number of theirs product line is called product width.
Product Consistency- its means that the various types of product how much related each others.

Product life cycle:
A product’s life cycle can be divided into several stages characterized by the revenue generated by the product. The stages are as follows:
Introduction stage: In the introduction stage, the firm seeks to build product awareness and develop a market for the product. In this stage cost are very high, no competition, slow sales volumes.

Product life cycle
Growth stage: in the growth stage, the firm to build brand preference and increase market share. In this stage
Maturity stage: At maturity stage, the strong growth in sales diminishes. Competition may appear with similar products. The primary objective at this point is to defined market share while maximizing profit
Decline stage : At this point there is a downturn in the market. For example more innovative products are introduced or consumer tastes have changed. There is intense price-cutting and many more products are withdrawn from the market. Profits can be improved by reducing marketing spend and cost cutting.
The factors which may affect Britvic on this target market they are selling to. If a mix of product could be sold to different types of customers and result in better than selling individual products then that should be done. Promoting their products to a larger market rather than one particular product to an individual market.

Price:
Price is the main of marketing mix. Because it is must be right price. It is must be high enough to cover costs and make a good profit however at the same time be low price to catch the eye of customers. Before taking pricing decision we have to think the following;
Pricing strategy which company’s use such as price skimming, price penetration, and competitive.
Price skimming involves setting a high price before other competitors come into the market. This is often used of a new product which is not facing little competition.
Price penetration is the pricing method of setting a relatively low initial entry price, usually lower than the intended established price to attract new customers.
Competitive: If there is strong competition in a market then the price of product will be same for different products. Products may be good or bad.

Price setting method
There are four price setting method;
Cost plus pricing: in this method price will be set the price of production cost, including both cost of goods and fixed costs at current volume, plus a certain profit margin.
Target return pricing: in this method price will be set to achieve a target return on investment.
Value based pricing: price will be set product based usually the most form of pricing, if firm can achieve it.
Fair pricing method: The concept of this method is price will be fair.
Britvic might like to use price skimming strategies when launching new products as they are already a very well known brand of soft drinks. Even price penetration to give customers the chance to try a well known brand at a low price but increase the price when the product is growing and nearing maturity.

Place:
The product must be in the right place, in location which is affordable to the business and also suitable for customers. It is known as channel, distribution and market coverage. It is the way that getting the product to the consumers, retailers, wholesaler’s agent are the distribution channel. Market coverage are divided exclusive, selective and inclusive.
Exclusive market coverage means that there only own brand product will marketed.
Selective market coverage means that there will be chosen brand out different brand product.
Inclusive market coverage means that there will be another brand product with own brand.
Britvic which is already distributing its products to a wide range of areas such as supermarkets, local shops, restaurant, pubs, hotels, and cinemas. They could expand there distribution even more if it wanted to. They could distribute to wholesalers and give them exclusive offers which are not available elsewhere. They may even think door to door promotion for their product.
Promotion;
Another one of 4p’s is promotion. This includes all of the tools available to the marketers for marketing communication. Company’s goal is the main of promotion. Different promotion methods could be such as advertising, personal sales, and sales force all are included in promotion.
Since Britvic is a very successful brand and company, they could afford to use any kinds of promotional method. They are already involved in many events such as Wimbledon and Pantomimes which gives the brand a lot of publicity. However they could have celebrity endorsement with famous athletes and film stars promoting their products.

Process:
Process is a procedure. It is a mechanism of activities which is involved in the delivery of a service. It means that how a business provides a good service to the customers and to get success. For example in a restaurant customer come to get proper food within short time for that there will be a procedure, the management will give them food in time and proper food. Also there will be a rule every staff will come before opening times to prepare everything that if any customer is come early then they can serve food. To make a regular customer procedure is very important.
People:
People who serve the customers is the main in a service. People are considering the most important element in any kinds of service so the rule of staff is very important to influences a customer’s perception of the quality of service. There are different department for service in a restaurant. Front side who are dealings with customers they must be highly trained and with good knowledge about their product. In kitchen there must be experiences people. And also it is very important that they all will be a good behaviour staff.

Physical Environment
Physical environment is very important for any kinds of business. It is an extended marketing strategy which is used to satisfy the customers by the best advertisement, with either tangible products or service. The marketing strategy should include effectively communicating their satisfaction to potential customers because of the intangibility of service. From physical environment the customers want comfort. Suppose a restaurant’s physical environment should be very clean and well decorated and also comfortable for the customers, because physical environment influences customers to choice a food. On the other hand it will be not only comfortable for the customers but also for staffs. Otherwise it not possible to serve the customers in proper way.

Economic Growth:
For economic growth they can adapt the following marketing mix.
Product: they can bring new drinks in their product range.
Price: In this case they can increase the price of their products.
Place: Britvic already has strong distribution channel after that they can improve their distribution channel all over the world.

Promotion: they have to set a strong promotion group for their new drinks.

More old people (Environment):
If they thought that more old people of their customers then they can adapt the following marketing mix.
Product: they can bring a new drink for old people with no sugar.
Price: they have to set a good price for the new drinks with the compare of their competitors.
Place: in this case they can set agent or distribution channel in where older people is living.
Promotion: they have to follow a good promotion method. Like they can use old people as model for advertise.

Ban on fizzy drink for children (Government rules & regulations):
If government currently ban the fizzy drink for children they can adapt the following marketing mix.
Product: Britvic can bring new healthy drinks in their product range for children with no sugar.
Price: they can set a reasonable price for their customers.
Place: they have to distribute their new product with distribute channel or they can set more new distribution channel and agent. They can use children model for their advertise.
Promotion: they have to give advertise for their new product with media

MARKETING

2012-06-19T02:52:00.002-07:00

Before discuss the term ‘marketing’ at first we have needed to know what a ‘market’ is. Generally a market is a busy place where some peoples goes to buying and some people goes to for selling, like bazaar. But in wide sense market is not a place for only buying or selling, because the people goes to market for their necessary needs of life. For example Bank. So we can say that a market is a place ‘A regular gathering of people for the purchase and sale of provisions, livestock, and other commodities’.

Marketing is the process used to determine what products or services may be of interest to customers and the strategy to use in sales, communications and business development. So in view of customer marketing means to buy anything and in view of seller marketing to collect or produce the products or services which is necessary for the buyer and the customer are interest to those product and service.

Characteristics of marketing Concept:

If we analyze the Britvic Company information we can find out some characteristic of marketing concept those are:

(i) Company should have a target market;

(ii) company should identify unsatisfied needs of target market;

(iii) Firm should work with harmonization with other firms.

MICRO AND MACRO ENVIRMENT

Micro economy is the study of the micro units of market economy of supply & demand of goods & services that are market forces to determine price of a commodity. During the mid 19th Century we can say that time Britvic Economic was look like micro economic. So a micro environment is the weather climate of a particular piece of lands (a small one) e.g. a town, village or city.

Macro economy is the study of the aggregate goods & services -total production of the nation’s economy-equilibrium level of income and employment of resources in national economy (dwells into inflation, unemployment, GDP). After the 2nd world war Britvic Company went strength to strength and it made contract with the other out side UK companies and during that time to present we can say that Britvic environment is macro economic environment. Because at present time a lost of national and international peoples are working in Britvic company and is a contribute to increase the notional GDP.

Micro economics is more focused on individual market businesses and their actions in accordance with income-supply and demand as price theory.

Market Research

On focus on Britvic Company we can say that market research and the information gather are very important for an organization. Market research and the information gather is an essential part of any business that wants to offer products or services that are focussed and well targeted.

Market research will bring the following benefits:

(a) Market research will help you better;

(b) Market research helps you identify opportunities;

(d) Market research creates benchmarks and helps you measure your progress;

(e) Market research will show if improvements are being made and, if positive, will help motivate a team.

Marketing Information Gathered offers many advantages:

(1) Organized data collection;

(2) The storage of important data;

(3) Data amassed and kept over several time periods;

(4) A broad perspective;

(5) The ability to do a cost-benefit analysis;

(6) Coordinated marketing plans.

Process of Marker Research

There are 2 ways of market research:

1. Primary;

2. Secondary.

Primary: this research involves collecting information to meet our specific need. Primary research can be Qualitative and Quantitative.

Secondary: This research involves analyzing information that already has been gathered for another purpose.

Qualitative research:

Qualitative research is used to explore people's opinions about new or existing products or markets through open-ended questions or discussion. It may be conducted in a number of ways, including focus groups and interviews, and open-ended interviews

Which is already did the Britvic Company.

Quantitative research

Quantitative research surveys larger numbers of people than qualitative research and generates statistics such as the size of the market and the percentage of customers satisfied with a particular product.

I think the most east way to this research is telephone. And the Britvic Company may apply this.

The Six Steps in Conducting Quantitative Marketing Research.

1. Identifying and defining your problem

2. Developing your approach

3. Establishing research design and strategy

4. Collecting the data

5. Performing data analysis

6. Reporting and presentation

Scottish Law

2012-05-30T02:59:00.000-07:00

The law in Scotland has a long and complicated history. It has its own distinct legal system including its own laws and Courts; it has developed from a variety of sources. Some of the laws in Scotland are different from those in England and Wale.

Before discussing Scottish legislation at 1st we need to know what legislation is. There are 4 sources of Scottish Law legislation is one of them. We know at present time Scottish Legal system considered a mixed legal system with England law and Northern Irish law. But in past time it was also mixed with Celtic, Welsh and also big contribution of Roman law. Scottish law recognizes four sources of law: legislation, legal precedent, specific academic writings and custom. The name of legislation is statuary law. Legislation is usually proposed by a member of the legislature.

The sources of Scottish legislation are in the following:

1. Parliament of the UK

2. Scottish Parliament

3. European parliament and

4. Council of European Union

In the United Kingdom, delegated legislation is also the name given to legislation or law that is passed otherwise than in an Act of Parliament (or an Act of the Scottish Parliament, Northern Ireland Assembly or National Assembly for Wales).

The delegated LEGISLATION IS a series of laws made by a body other that Parliament, under the authority of Parliament. They are also a good example of secondary legislation.

Types of delegated legislation

Delegated legislation can take a variety of forms, each of which are for different purposes. Delegated legislation is used will be determined by the wording of the parent Act.

Orders-in-Council

Orders of Council

Orders are usually made by Ministers.

Directions

Form of legislation:

Legislation is the act of making laws. It can be when the laws are carried out. When new legislation is being up it begins as a bill. There are various types of bill, Private, hybrid and public bill. Public bill is the greatest part of the legislative program. These come in two forms, private member bill and government bill.

To making law, bill goes though several stages:

First review: this is a brief introduction of the bill to the house by the proposer who names the bill and date for the second reading.

Second reading: a general senate takes place but no amendments are allowed at this stage. A vote is taken and the bill mores on.

Committee stage: this is where real work is done as members of the committee debate the bill clause, amendments are made vote taken.

Report stage: the bill presented to the house and any new clauses debated with the government any charge which has been agreed in committee. In this stage no vote is taken.

Third reading: the bill is debated in principle and a vote taken. It is unusual for the bill not to be passed here.

After these stages have been concluded, the bill is sent to the other house and goes through the same procedure. Once both houses have agreed, the bill is sent for royal assent and comes into effect either immediately, at a specified date or in some cases in various stages.

Scottish Legislation (Law):

Alcoholetc. (Scotland) Act 2010

Arbitration (Scotland) Act 2010

Budget (Scotland) Act 2010

Control of Dogs ( Scotland) Act 2010

Patient Rights ( Scotland) Act 2011

The court, both in Scotland, England and some of European courts, are another source of Scottish law. The courts are very important in the Scottish legal system because they can change the law.

There are 3 kinds of court in Scotland as like UK

Civil Court

Criminal Court

Some other special Court

Civil Court: In Scotland the Civil Court Are as follows

Supreme Court of of the UK

Court of session

Sheriff Court

Criminal Court: The Scotland Criminal Courts

High Court of Judiciary

Sheriff Court

District Court

Justice of the Peace Courts

Special Court: In Scotland have also some special Courts other than civil and criminal court. Those are

Tribunal

Children’s Hearings ( i.e. In my country known as Juvenline Court)

Court of Lord Lyon

Other Court: other Court means when the court think the dispute can be solve alternative way and than is easier then the court rules and regulation so Joudge can transfer this. Like for

Alternative dispute Resolution (ADR)

Arbitration

Mediation.

The institutional writers are historical individuals who have recorded the developed and contributed to understanding the Scots law. Lawyers in the 17th and 18th centuries who wrote books setting out the principles on which Scots law is based is called institutional writers. Many of these principles were based on Roman law. Lawyers in Scotland today still look at what the institutional writers said about the law and apply these principles to modern day situations.

There are several institutional writers but the main ones are Stair, Bell and Erskine. The ideas that these individuals promoted are still debated in Scottish universities to this day and May even are used in court cases to illustrate important legal points. These individuals include:

Sir Thomas Craig who published Jus Feudale in 1655. John Dalrymple, Viscount Stair, who published Institutions of the Law of Scotland in 1681.Lord Bankton who published An Institute of the Laws of Scotland in 1772. The institutional writers have not published anything since 1829.

Custom or long term practice may be looked on as a source of law, where no other source of law are available. However for a Court to treat custom as a source of law. It must not be contrary to any statutory legislation.

At present time Scottish legal custom plays historical rules. As it has been gradually eroded by statute and the development of the institutional writers' authority in the 19th century. Some examples in Scotland, such as the influence of UDAL LAW in Orkney and Shetland. However, its importance is largely historic with the last court ruling to cite customary law being decided in 1890.

So the Custom law is not using today, it has been over 100 years since any court used custom as a source of law.

Market Failure

2012-05-16T17:38:00.001-07:00

At present time market failure is very important topic in the current business world. Because at present time many countries facing this problem. Generally market failure means when market are not able to go freely functioning about economic efficiency. Its means that when in a market the quantity of a product demand by the customers does not match to the supplied by the suppliers. In a simple word its means that when a market are not able to work optimally, that call market failure. We can set up a example for market failure. Like share stock market. At present time share price going to decrease day by day.

There are many reasons for market failure. Such as public goods, merit goods e.t.c.

Public goods: there are 2 kinds of goods one is non-rival and another is non-excludable. Public goods are non excludable good. Non-excludable goods mean that if the good is providing one time and no one can stop the benefiting from the product. Like Air defence systems, Roads / motorways, Public parks & beaches etc. This failure did as the goods being produced are of a nature that the market would under provide, over provide or even fail to provide, if the government did not intervene. So for stopping market failure government can play some rules and regulation of public goods.

Merit goods: when for the insufficient information demerit goods are produce more then the demand, that time market will goes to fail. Because most peoples expecting good product. So produce the merit good producer need to make sure how much he need to produce and is that acceptable to the consumer or not. a merit good is a product like education and when the imperfect information government think that consumers undervalue.

Externalities: Externalities means that 3rd parties economic activity. That means when a 3rd party is affected by the decisions and action of the others. One of the main reasons for market failure is no clearly defined of property right for those agents who are operating in the market. There are two kinds of externalities one is positive externalities another negative externalities. Negative externalities like Smoke. So solve this problem government need to make sure about the clear property right, like intellectual property, patent etc.

Imperfect competition: Another main reason for the market failure is imperfect competition. Competition is good for the market but not imperfect competition. The main reason is imperfect completion is differences in income and wealth between different groups within our economy. Which is lead to our living standards. And the values of judgements come into play when we distribute of wealth in the society. Government can play a vital rule for solve this problems. In my opinions government can take more tax from the reach peoples.

“Government Policy: Welfare Policy”

Whenever government make any rules and law there must be some conflict about that laws. So for achieving the main goal to the law there must need some resources there. So the government laws also an economic problem.

There are 2 kinds of government object:

Economic and

Non-economic.

Welfare policy decisions are often made in the areas of education, health, and employment. My current Government policy on welfare is Education policy. Recently UK Government increase tuition fees for higher education.

The government can make intervention by 2 ways one is taxation and other subsidies. when the market is going to fail that time the gorvernment is apply this rights. So I have chosen the policy on the based of following instruments ;

1. Taxation and

2. Subsidies

Taxation :

The purpose of taxation is to finance government expenditure. A tax "is not a voluntary payment or donation, but an enforced contribution, exacted pursuant to legislative authority" in the name of toll, tribute, tallage, gabel, impost, duty, custom, excise, subsidy, aid, supply, or other name. so its take very important role to the price of products.

So the Taxation can be seen as the opposite of a subsidy. In most cases taxes are levied because the market failure is that too many of the goods in question are being produced and this over- production is seen as imposing some from of cost to society.

Pollution , congestion, the use of de-merit goods are all examples.

Subsidies:

Subsidies is very opposite to tax and it is very eassy idea where the government give some impregnate to producer for more produce than the normal produce.A subsidy is an assistance paid to a business or economic sector. So it is a sum of money granted by the government or a public body to assist an industry or business so that the price of a commodity or service.

When Government help in a sector for public is called subsidy. For example, in Agriculture sector Government can supply instruments of half price, they can supply seeds and give them loan without interest from government bank.

The industry where this is most obvious is agriculture, where the UK Common Agriculture Policy is held up as an excellent example of how subsidies can work but have numerous side effects. However , the principal also extends to other areas- housing , for example.

cause of the problem of rising house prices it is very difficult to get on the housing ladder, because there is not much low-cost housing available. Some councils have granted planning permission for new housing for local people and not high price of that house. Others are looking for a public subsidy to ensure that low-cost housing is made available for those that need it.

From the example, we can conclude that the market failure is an insufficient amount produced to meet consumer needs. Finally subsidies bring positive externalities.

The concept of externalities - subsidies bring positive externalities, taxation reduces negative externalities.

Evaluation of the current Government policy in education :

The current Government Policy of education which is using within the UK is failure.

In intervening in the market, the government is seeking to correct the problem that has been identified generally using some from of subsidy, tax, regulation, direct provision or other method. The market failure may be partly corrected but may also have an impact on other related and non -related markets.

The problems surrounding so called government failure stem from a number of key areas ;

Lack of knowledge about what the public wants.

Lack of knowledge about the relative costs and benefits of a policy.

The distortion of markets, the price signal and incentives.

So called rent where the interests of powerful minority lobbyists get precedence over more pressing but less powerfully supported issues.

GRIEVANCE AND DISCIPLINE HANDLING

2012-05-14T10:32:00.002-07:00

The grievance procedure is very important to resolution of conflict, both at the individual and collective levels. It designed to help and encourage all employees to achieve and maintain standards of conduct, attendance and performance. The company’s rules and this procedure apply to all employees. The main aims of the Grievance Procedure to ensure consistent and fair treatment for all parties. The company’s have rules and regulations to be followed by the employees to run the business for long term. If there is no Grievance procedure of the organizations, no one can run the organization for a long term with a fair and equal treatment to every employee. The procedure also plays an important role in the resolution of a conflict at the workplace by different ways for instance according to one of the main principles of the grievance procedure that no employee will be dismissed at a first breach of Grievance procedure, except in the case of gross misconduct when the penalty will be dismissal without notice or payment in lieu of notice. Moreover, when someone at work knowingly breach a clearly mentioned rule of the company may have less to breach it because of company’s direct action of dismissal about the misconduct. Most of company’s have this principle that no disciplinary action will be taken against an employee until the case has been fully investigated which help in promoting confidence among employees. It also has a principle of right of appeal for the employee to state his or her case before any decision is made. A grievance procedure is very important to maintain the business environment on the way to progress and prosperity.

QUENCH Ltd.

GENERAL PRINCIPLES

The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available.

The following principles will apply to the application of this procedure: -

1. Procedures should be reviewed and up-dated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practice generally.

2. Wherever possible grievances should be resolved informally without recourse to formal procedures. It is expected that individuals will enter into the procedure in good faith, with the aim of resolving a particular issue. The grievance procedure should not be used as a substitute for normal day to day discussions.

3. Any steps taken under this procedure should be taken promptly, unless there is a good reason for delay.

4. If, on investigation, the grievance is found to be vexatious or trivial the Chief Excutive may dismiss it without further consideration. The employee will be advised accordingly.

5. All employees who are the subject of this procedure will have the right to be accompanied at any formal meetings held under this procedure by a trade union representative or work colleague.

6. All parties involved in these procedures must ensure that they maintain, as appropriate, the confidentiality of the process within and outside the company.

7. Timescales - Whilst every endeavor will be made to comply with timescales, due to the complexity and or specific circumstances of a case, timescales may be extended. In such circumstances the individuals concerned will be advised of the reasons for any delay.

8. Involvement of Human Resources - A member of the human resources team will be consulted and will advise on the formal process.

Disciplinary action may include:

- An oral warning

- A written warning

- A final written warning

- Suspension without pay

- Demotion

- Some other appropriate disciplinary action short of dismissal

- Dismissal.

Below are the steps, which must be complied with when handling employee grievances and which must, as a minimum, be set out in the company grievance procedure:

A. Informal Procedure

1 Grievances can often be resolved quickly and informally through discussion with Chief Executive and there is an expectation that every effort will be made to resolve matters informally. Employees are therefore expected to raise any concerns or issues informally with their immediate Personal Manager / head of section (the Chief Executive).

2 Personal Manager will discuss an employee's concerns in confidence with him/her, make discreet investigations, as appropriate, and attempt to address his/her concerns fairly and promptly.

B. Formal Procedure

Stage One - Formal Resolution

If it is not possible to resolve a grievance informally, the employee should raise the matter formally, and without unreasonable delay, by putting his/her grievance in writing. The employee must set out the grievance in writing and send it to the employer. The Assistant personal manager will write to the employee acknowledging receipt of the grievance, normally within five working days. The Assistant personal manager will invite the employee to attend a formal grievance meeting in order to discuss the grievance. This meeting will normally take place within ten working days of the written acknowledgement. The out come of the meting must be communicated to the employee within 5 working days.

Stage Two-

If an employee not satisfied from stage 1 he need to inform personal manager and As a result of the initial grievance meeting, the personal manager may determine that it is necessary to make further enquiries and/or may appoint an investigating officer to conduct an impartial and thorough investigation into the background facts or into any allegations made by the employee. The results of the investigation will be provided to the personal manager in the form of an investigation report within 10 working days. The Personal manager will determine the outcome of the grievance. S/he may reject the grievance, or may uphold the complaint and indicate what steps have been/should be taken to resolve it. The manager will inform the individual, in writing, of the decision and the right of appeal normally within ten working days of receiving the investigation report or of the final grievance meeting/hearing. The employee will be given an explanation if this is not possible and will be advised when a response can be expected.

Stage Three - Appeal

If an employee remains aggrieved, s/he may write to the Director of HR within ten working days of the date of the decision under Stage 1, exercising his/her right of appeal. Appeals will be considered by the Chief Executive. And he will appoint an Appeal officer who will have had no prior involvement in the case. This procedure may, in the interest of natural justice. The decision may be given verbally at the appeal hearing and will in any event be conveyed or confirmed in writing within ten working days of the hearing. Any recommendations for further action will be clearly stated in the letter.

The decision following the appeal is final and there will be no further internal right of appeal.

The grievance procedure, which is used at the Wellbeloved District General Hospital, is fully related to A.C.A.S. recommendations. They have used the principles of A.C.A.S. as general principles. They have discussed their Grievance Procedure in four stages like A.C.A.S.

In first stage the line manager of employee will arrange a meeting within three working days and the outcome of the meeting must communicated to the employee within three working days which is similar to A.C.A.S.

In stage two they are saying same rule of A.C.A.S., if employee is not satisfied an employee can raise the grievance in writing with the next most senior manager. The manager will arrange a meeting within five working days and he will also notify him within five working days.

In stage three the general manager will hear evidence from all parties and he will also communicate the outcome of the meeting in writing, to the employee which is also mentioned in A.C.A.S. procedure.

And the final stage they have said about appeal but the procedure of A.C.A.S. they have said about appeal in stage three.

From the above discuss we can say that the grievance procedure of Wellbeloved District General Hospital is a very similar to A.C.A.S. recommendations.

Fair Dismissal

2012-05-13T08:43:00.000-07:00

We know that there are some reasons for fair dismissal. Those are as following:

1. Misconduct;

2. Your capability or ability to do your job;

3. Redundancy;

4. A statutory restriction;

5. Some other substantial reason.

Now we discuss those reasons with some case reference

Blackman vs The Post office (1974)

Fact: In this case we can see that Blackman got the maximum number of opportunity during his job time but, and he still failed. He taken lots of chance for improve him, but he can’t, that why he was dismissed. It was held that as the taking of an aptitude test was a qualification requirement of that job his dismissal was fair.

But we know that, before dismissing an employee for incompetence, the employer should have give some time to change himself under the CODE OF PRACTICE ON DICIPLINARY PRACTICE AND PROCEDURE in employment. So no dismissal should be take place without formal warning providing the employee with an opportunity to redress his position. So Court of appeal held that the company had reasonable grounds for honesty for believing that he was incompetent.

British home stores v Burchell (1978)

Fact: In this case plaintiff said that she was unfairly dismissed. Court also said that there is no reasonable reason for her dismissal. After that defendant was appeal to the higher court. This is an appeal by British Home Stores Ltd. against the decision of the Industrial Tribunal when they had to consider an application by Miss Burchell, said that in which she claimed that she had been unfairly dismissed by the present appellants.

The prescriptions of sub-Para (8) Of Para 6 provided that, the evidence brought forward by management so as to discharge the burden, with the consequence that this was not, as we think, an unfair dismissal. So the appeal was allowed.

Williams vs. Compare Maxam Ltd (1982)

Fact: Compare Maxam Ltd was losing their business. So the company was wanted to reduce their employee. So the company was dismissed some employees. We know that redundancy is a fair reason for dismissal. Redundancies take place when there is no longer enough to work for an employee at a company. But the 5 workers claimed that their dismissal was unfair.

There is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognized by the employer, and reasonable employers will seek to act in accordance with the following principles:

The employer will seek to give as much warning from the employer;

The employer will seek to establish criteria for selection which so far as possible;

The employer will seek to ensure that the selection is made fairly;

The employer will seek to offer him alternative employment.

For these reasons the majority decision was not merely wrong, but wrong is that the decision offends common sense. So the judge Browne-Wilkinson J said that there was an error of law by reaching a conclusion so perverse on the facts. The dismissal selection was unfair.

Foot v eastern counties timber (1972)

Fact: In this case Mrs. Foot was employed as a wages and accounts clerk by the respondents. She was dismissed shortly after her husband. In this case the dismissal of a cashier who married her employer’s business competitor was held to be fair (Some other substantial reason). Because this is one of the reasons for fair dismissal.

Motivation theories

2012-05-11T18:13:00.000-07:00

Theories: Motivation theories mainly classify into two different perspectives:

Content and ; Process theories.

Content Theories: This theories deal with “what” motivates people and it is concerned with individual needs and goals. Content theories Says that motivation create for individual needs. At the 1st are physiological needs, which are the need of satisfy biological requirements for food, air, water, and shelter. After that safety needs – the need for a secure and stable environment and the absence of pain, threat, or illness. Belongingness is the need for love, affection, and interaction with other people.

So the content theories are as:

McGregor’s Theory X and Theory Y;

ERG Theory;

Herzberg’s Motivation-Hygiene Theory;

McClelland’s Theory

Herzberg theory: In this section, we discuss at the Herzberg’s theories of motivation that dominate organizational thinking today.

Herzberg was the first times proved that satisfaction and dissatisfaction at work nearly always arose from different factors. In 1959 Herzberg wrote the following useful little Article, which is very helping to explain this theory, i.e., that the factors which motivate people at work are different to and not simply the opposite of the factors which cause dissatisfaction:

"We can expand ... by stating that the job satisfiers deal with the factors involved in doing the job, whereas the job dissatisfies deal with the factors which define the job context."

The main perspectives of Herzberg theory is:

high and low attitude;

short and long term duration of feelings;

first and second level factors;

The interrelationship of factors.

Process Theories: This theory deals with the “process” of motivation and is concerned with “how” motivation occurs. Vroom, Porter & Lawler, Adams and Locke studied motivation from a “process” perspective. Process theories of motivation are about a cognitive rational process and concentrate on the psychological and behavioural processes that motivate an individual.

Process theories of motivation - Adam's Equity Theory

At a primary level, most people generally like to be in relationships where give and takes are about same. So if any person is getting too little from the relationship, then clearly they are going to be unhappy with this but it is also likely that the other person will also be feeling rather guilty about this imbalance. This is reinforced by strong social norms about fairness.

I Scotia Airway they have their goal. But the problem is that the relationship between the members was not good. So they are not getting their result. They should work with a good team work. And distribute their work to every one of the members.

The Scotia Airways needs to change their working strategy for survive in challenging international market and for earn healthy money. The investors of Scotia airways want to change their rules and regulation and adopt new strategy to earn good profit. But some of the workers and management members of Scotia Airways do believe that if they change their principle rules that mean change in culture and ethos, which is not a good thing for their self and also the company. In such condition management want to increase job performance, which can be done by team work, empowerment, job design, training and work organisation.

In according to motivation theories I think they 1st of all management can be meeting all the member of Scotia Airways into a group. They can discuss about the matters with unsatisfied members. They should discuss their ideas and can come out with a loot of smart thinking. Management should involve the entire member into making of new decision and let the staff to set their own goals and targets. By doing this management will get their own result and also employees or unsatisfied members will be happy by doing this in their own way. (Goal Theory)

Senior management need to put the responsibility on the member of team by job enactment, and job rotation should be their for circular load which reduce the boringness from the work. Training should be given to the staff or every member of group and he or she feels to be involved in the work. In this way morale, confidence and skill of workers will improve. Most important think of this process is work with organisation. Which can be done by provide better equipment. Up to date material should be provided. The good environment can give his or her best out come. Modern Technology should be used as much as possible.

So, I think these are some methods like Process theories (Goal theory), and Content theories (Herzber) those can be improved the job performance of Scotia Airways.

Teamwork is the concept of people working together cooperatively as a team in order to accomplish the same goals/objectives. The most important method for achieve our desire goals and targets and destination is Team working. Teamwork is action performed by a team towards a common goal. A team is consisting of more than one person with different responsibilities. In business team work plays an vital role, as we know now a days complexity of business increase the threats of failure .in such type of situation team work is best method to work with. Team is not a gathering of people for enjoyment. Teams are built to achieve the goals.

A team is making by number of people. The number of peoples in a team can be few or can be many. The different type of people has different skill and ideas. By using these skill and idea a team can produce more flexible result. So, we can say that group of people who gather for some purpose is called team and work done by this team is called team work. Teamwork is important because it allows goals to be reached in an efficient and timely method. Teamwork combines many different skills from many people; allowing achievements to be made that could not be made alone!

I my personal opinion Scotia Airways need a team working because in present situation Scotia needs to make new destination and it needs different kinds of skill and ideas which can be getting from their members. This can be only possible with the help of team working.

Now we discuss the benefit which can be produced by team working:

Distribution of work with the all member of the can be easy;

Distribution of work can increase the interest of member in work.

It can be help to making better decision-in team number and the ideas can be emerged by team member.

This can also feel equality-in team each and every member is involved to achieve the goal.

There are also some costs of team working. Some time its need extra money to produce suitable environment in which teams can perform their jobs. Two different and good ideas for one matter can increase the sense of competition between two team members which is not good for team. This competition can become hindrance in the way of team.

Lastly we can say that if some one wants to a good result, they should needs some good ideas, skill and intention. This only can do by team working.

There are many numbers of methods which are very helpful for improving the team cohesion. I think improve the team performance and cohesion for Scotia Airways apply three main factors which can improve their organization. Those are as follows:

Clarity of goals;

Consultation;

Team size and objective.

1st Clarity of goals is very important think which touch the performance. The organizations 1st need to fixe their own goal. In Scotia every employee should aware from his or her goal and target. Management should allow them to set their own goals to achieve success. If goals are clear it makes it easy for some one to choose right way to be there.

2nd Consultation is also another important factor which is very helpful for improving performance of Scotia. There are 80 staffs in Scotia Airways, they are working in different department. Meeting should be held which invite member from all departments in which they can share their views and solve the problems in short time.

3rd Team size also plays an important role. We know In Scotia Airways have a large numbers of employees, who work in different department. I think all employees should be divided in small groups so by this every one can take equal part in the work to be done very essay.

I think these are some factor that can be improved the team cohesion and performance of Scotia Airways.

knowledge acquired by learning and instruction

2012-05-09T09:34:00.003-07:00

Knowledge acquired by learning and instruction; "it was clear that he had a very broad education"

An Education is an upcoming coming-of-age drama film directed by Lone Scherfig, written by Nick Hornby, and featuring an ensemble cast headed by newcomer Carey Mulligan. It is currently in post-production, and no official release dates have been announced.

What is education? The answer is, all elements in the opening paragraph and more, relate to education and all should be considered. This would be ideal and sounds good, but "all" is not possible where performance must be measured. Only what can be measured will be selected and the measuring tool is the written test. Anyone who does not have the ability to put clear thoughts on paper is labeled a failure. All natural skills, including knowledge processing, does not count. The fact is, what is exercised grows stronger, what is ignored stays dormant. The classroom exercises the collection of academics, leaving all other natural skills in the closet.

Test does not measure intelligence or ability; it does not measure how the mind processes information, how motivating experiences develop persistence, or how the mind sorts out instincts, opinions, evaluations, possibilities, alternatives. Knowledge by itself has no value, it is like a dictionary filled with words. Words by themselves have no value, it is the process of stringing them together that gives them value. How they are strung together determines the level of value. Now our education system is becoming a system that memorizes the dictionary. When students have memorized selected knowledge, then they will be given a one-day test, based on dictionary knowledge, which will influence employment opportunity for the rest of their life. Natural skills are not considered. Is this how America became the worlds' economic leader? NO! Knowledge only has value when used with a process and process in an artificial environment is not predictable or measurable.

Achievers in life use inspiration and motivation to overcome barriers. Teaching to the test does not inspire or motivate anyone, memorizing does not inspire a love to learn, in fact, it does just the opposite, it turns off the desire to learn. Education’s goal should be to develop a love to learn that stays with students throughout a lifetime. Education should be a lifetime experience, not limited to the youth years.

Educators are switching to test because there is a crisis in education of their own making and society wants measurable results. This pressure is passed on to political leaders who base political decisions on what is measurable, which is academic test and test are based on acceptance of the status quo. Ever student must now accept the status quo and be an academic intellectual or be labeled a failure. Natural talent and knowledge processing skills does not count. Students receiving the failure label are growing in numbers and percent, all because the system measures selected knowledge on a one day standardized paper test.

Consider the parent who is having a problem with a word processor. On their own, they can’t solve the problem. They have been collecting knowledge for years, but their knowledge processor is in hibernation. With any new gadget, someone has to teach them, they can’t figure it out for themselves. Their thirteen-year-old boy comes to the rescue. He has limited knowledge, but he knows how to processes available information. He explores the word process problem until he finds a solution. He is not unusually smart, this is a teenager’s natural approach to finding solutions.

All young children have a natural talent for creative process of information. It’s during the teen years that natural creative processing is replaced with the status quo. The status quo memorizes knowledge and forgets how to process it. In the classroom, memorizing is what counts. Standardized test reinforces the status quo. It kills creative processing ability. Status quo attitudes will follow them into adult life where they will have to ask their children for help.

Today, the education has a new tool on the market. Behavior control drugs. Any student who refuses to accept the status quo is labeled a troublemaker and will be drugged. The student now behaves in the classroom with glassy eyes and school officials receive high performance ratings. The student may get passing grades and land a job with a comfortable wage, but that will be all. Teenage dreams of great ambitions are gone.

Fact:

Self-made millionaires are not "A" students in the classroom. The way they process knowledge is in conflict with classroom priorities. The self-made millionaire has a vision, then he researches specific knowledge, applies intuitive knowledge and process all the elements, searching for a workable solution. Finding alternative ways to do common tasks makes millionaires. The secret is vision, research and processing, not pre stored knowledge.

The typical employer wants employees with dictionary knowledge, not visionaries. They want employees who follow orders, are willing to do repetitive tasks, be happy with a limited role, and accept the status quo. Repetitive tasks' is efficiency and this is where profits are made. Also, the status quo prevents the exposure of blunders by leaders. Too many blunders and profits disappear. In a status quo environment visionaries become bored quickly and soon receive the troublemaker label by offering alternatives or exposing blunders, sometimes leading to dismissal, yet, their ideas increase efficiency and create new sources of profits for the company. In the long haul, visionaries are the one’s who make above average wages no matter what their formal education level. The education system now has the tools to kill off this type of person, behavior control drugs! As these students move into the workforce, status quo and blunders will kill off the typical business.

What can be considered a quality education? A quality education is custom design that addresses the unique abilities of each student and has a positive emotional experience. Custom education evaluates natural talent and how the student learns. This is why home schooled students out perform classroom students. Parents learn what works and does not work, then focus on what works. With this method, students develop a love to learn and learning becomes a lifelong process.

The Purpose of Education

Education lays the foundation for the fulfillment of a person's dreams and aspirations. Education helps a person meet his/her career objectives and achieve an economic growth. Education builds a resourceful individual out of a raw human being. Education contributes to the cultivation of a prudent person and earns the person satisfaction of having met his/her goals. Education results in a sense of personal fulfillment and paves path for this feeling of fulfillment. An educated human being, having experienced the positive effects of education on his/her personality is bound to encourage the idea of education and effectively, educate his/her children. Hence one individual thus results in an educated family, taking education a long way along the future generations. One of the beliefs about the purposes of education is that education aims at creating good teachers!

The true purpose of education is to bring about profoundness to one's emotions, to broaden one's perspectives and to lead to a healthier approach of looking at life.

If today is a typical day on planet Earth, we will lose 116 square miles of rainforest, or about an acre a second. We will lose another 72 square miles to encroaching deserts, as a result of human mismanagement and overpopulation. We will lose 40 to 100 species, and no one knows whether the number is 40 or 100. Today the human population will increase by 250,000. And today we will add 2,700 tons of chlorofluorocarbons to the atmosphere and 15 million tons of carbon. Tonight the Earth will be a little hotter, its waters more acidic, and the fabric of life more threadbare.

The truth is that many things on which your future health and prosperity depend are in dire jeopardy: climate stability, the resilience and productivity of natural systems, the beauty of the natural world, and biological diversity.

It is worth noting that this is not the work of ignorant people. It is, rather, largely the result of work by people with BAs, BSs, LLBs, MBAs, and PhDs. Elie Wiesel made a similar point to the Global Forum in Moscow last winter when he said that the designers and perpetrators of the Holocaust were the heirs of Kant and Goethe. In most respects the Germans were the best educated people on Earth, but their education did not serve as an adequate barrier to barbarity. What was wrong with their education? In Wiesel's words: "It emphasized theories instead of values, concepts rather than human beings, abstraction rather than consciousness, answers instead of questions, ideology and efficiency rather than conscience."

The same could be said of the way our education has prepared us to think about the natural world. It is a matter of no small consequence that the only people who have lived sustainably on the planet for any length of time could not read, or, like the Amish, do not make a fetish of reading. My point is simply that education is no guarantee of decency, prudence, or wisdom. More of the same kind of education will only compound our problems. This is not an argument for ignorance, but rather a statement that the worth of education must now be measured against the standards of decency and human survival - the issues now looming so large before us in the decade of the 1990s and beyond. It is not education that will save us, but education of a certain kind.

SANE MEANS, MAD ENDS

What went wrong with contemporary culture and with education? There is some insight in literature: Christopher Marlowe's Faust, who trades his soul for knowledge and power; Mary Shelley's Dr. Frankenstein, who refuses to take responsibility for his creation; Herman Melville's Captain Ahab, who says "All my means are sane, my motive and object mad." In these characters we encounter the essence of the modern drive to dominate nature.

Historically, Francis Bacon's proposed union between knowledge and power foreshadows the contemporary alliance between government, business, and knowledge that has wrought so much mischief. Galileo's separation of the intellect foreshadows the dominance of the analytical mind over that part given to creativity, humor, and wholeness. And in Descartes' epistemology, one finds the roots of the radical separation of self and object. Together these three laid the foundations for modern education, foundations now enshrined in myths we have come to accept without question. Let me suggest six.

First, there is the myth that ignorance is a solvable problem. Ignorance is not a solvable problem, but rather an inescapable part of the human condition. The advance of knowledge always carries with it the advance of some form of ignorance. In 1930, after Thomas Midgely Jr. discovered CFCs, what had previously been a piece of trivial ignorance became a critical, life-threatening gap in the human understanding of the biosphere. No one thought to ask "what does this substance do to what?" until the early 1970s, and by 1990 CFCs had created a general thinning of the ozone layer worldwide. With the discovery of CFCs knowledge increased; but like the circumference of an expanding circle, ignorance grew as well.

A second myth is that with enough knowledge and technology we can manage planet Earth.. "Managing the planet" has a nice a ring to it. It appeals to our fascination with digital readouts, computers, buttons and dials. But the complexity of Earth and its life systems can never be safely managed. The ecology of the top inch of topsoil is still largely unknown, as is its relationship to the larger systems of the biosphere.

What might be managed are us: human desires, economies, politics, and communities. But our attention is caught by those things that avoid the hard choices implied by politics, morality, ethics, and common sense. It makes far better sense to reshape ourselves to fit a finite planet than to attempt to reshape the planet to fit our infinite wants.

A third myth is that knowledge is increasing and by implication human goodness. There is an information explosion going on, by which I mean a rapid increase of data, words, and paper. But this explosion should not be taken for an increase in knowledge and wisdom, which cannot so easily by measured. What can be said truthfully is that some knowledge is increasing while other kinds of knowledge are being lost. David Ehrenfeld has pointed out that biology departments no longer hire faculty in such areas as systematic, taxonomy, or ornithology. In other words, important knowledge is being lost because of the recent overemphasis on molecular biology and genetic engineering, which are more lucrative, but not more important, areas of inquiry. We still lack the the science of land health that Aldo Leopold called for half a century ago.

It is not just knowledge in certain areas that we're losing, but vernacular knowledge as well, by which I mean the knowledge that people have of their places. In the words of Barry Lopez:

"[I am] forced to the realization that something strange, if not dangerous, is afoot. Year by year the number of people with firsthand experience in the land dwindles. Rural populations continue to shift to the cities.... In the wake of this loss of personal and local knowledge, the knowledge from which a real geography is derived, the knowledge on which a country must ultimately stand, has come something hard to define but I think sinister and unsettling."

In the confusion of data with knowledge is a deeper mistake that learning will make us better people. But learning, as Loren Eiseley once said, is endless and "In itself it will never make us ethical [people]." Ultimately, it may be the knowledge of the good that is most threatened by all of our other advances. All things considered, it is possible that we are becoming more ignorant of the things we must know to live well and sustainably on the Earth.

A fourth myth of higher education is that we can adequately restore that which we have dismantled. In the modern curriculum we have fragmented the world into bits and pieces called disciplines and subdisciplines. As a result, after 12 or 16 or 20 years of education, most students graduate without any broad integrated sense of the unity of things. The consequences for their personhood and for the planet are large. For example, we routinely produce economists who lack the most rudimentary knowledge of ecology. This explains why our national accounting systems do not subtract the costs of biotic impoverishment, soil erosion, poisons in the air or water, and resource depletion from gross national product. We add the price of the sale of a bushel of wheat to GNP while forgetting to subtract the three bushels of topsoil lost in its production. As a result of incomplete education, we've fooled ourselves into thinking that we are much richer than we are.

Fifth, there is a myth that the purpose of education is that of giving you the means for upward mobility and success. Thomas Merton once identified this as the "mass production of people literally unfit for anything except to take part in an elaborate and completely artificial charade." When asked to write about his own success, Merton responded by saying that "if it so happened that I had once written a best seller, this was a pure accident, due to inattention and naiveté, and I would take very good care never to do the same again." His advice to students was to "be anything you like, be madmen, drunks, and bastards of every shape and form, but at all costs avoid one thing: success."

The plain fact is that the planet does not need more "successful" people. But it does desperately need more peacemakers, healers, restorers, storytellers, and lovers of every shape and form. It needs people who live well in their places. It needs people of moral courage willing to join the fight to make the world habitable and humane. And these needs have little to do with success as our culture have defined it.

Finally, there is a myth that our culture represents the pinnacle of human achievement: we alone are modern, technological, and developed. This, of course, represents cultural arrogance of the worst sort, and a gross misreading of history and anthropology. Recently this view has taken the form that we won the cold war and that the triumph of capitalism over communism is complete. Communism failed because it produced too little at too high a cost. But capitalism has also failed because it produces too much, shares too little, also at too high a cost to our children and grandchildren. Communism failed as an ascetic morality. Capitalism failed because it destroys morality altogether. This is not the happy world that any number of feckless advertisers and politicians describe. We have built a world of sybaritic wealth for a few and Calcuttan poverty for a growing underclass. At its worst it is a world of crack on the streets, insensate violence, anomie, and the most desperate kind of poverty. The fact is that we live in a disintegrating culture. In the words of Ron Miller, editor of Holistic Review.

"Our culture does not nourish that which is best or noblest in the human spirit. It does not cultivate vision, imagination, or aesthetic or spiritual sensitivity. It does not encourage gentleness, generosity, caring, or compassion. Increasingly in the late 20th Century, the economic-technocratic-statist worldview has become a monstrous destroyer of what loves and life-affirming in the human soul."

WHAT EDUCATION MUST BE FOR US

Measured against the agenda of human survival, how might we rethink education? Let me suggest six principles.

First, all education is environmental education. By what is included or excluded we teach students that they are part of or apart from the natural world. To teach economics, for example, without reference to the laws of thermodynamics or those of ecology is to teach a fundamentally important ecological lesson: that physics and ecology have nothing to do with the economy. That just happens to be dead wrong. The same is true throughout all of the curriculum.

A second principle comes from the Greek concept of paideia. The goal of education is not mastery of subject matter, but of one's person. Subject matter is simply the tool. Much as one would use a hammer and chisel to carve a block of marble, one uses ideas and knowledge to forge one's own personhood. For the most part we labor under a confusion of ends and means, thinking that the goal of education is to stuff all kinds of facts, techniques, methods, and information into the student's mind, regardless of how and with what effect it will be used. The Greeks knew better.

Third, I would like to propose that knowledge carries with it the responsibility to see that it is well used in the world. The results of a great deal of contemporary research bear resemblance to those foreshadowed by Mary Shelley: monsters of technology and its byproducts for which no one takes responsibility or is even expected to take responsibility. Whose responsibility is Love Canal? Chernobyl? Ozone depletion? The Valdez oil spill? Each of these tragedies were possible because of knowledge created for which no one was ultimately responsible. This may finally come to be seen for what I think it is: a problem of scale. Knowledge of how to do vast and risky things has far outrun our ability to use it responsibly. Some of it cannot be used responsibly, which is to say safely and to consistently good purposes.

Fourth, we cannot say that we know something until we understand the effects of this knowledge on real people and their communities. I grew up near Youngstown, Ohio, which was largely destroyed by corporate decisions to "disinvest" in the economy of the region. In this case MBAs, educated in the tools of leveraged buyouts, tax breaks, and capital mobility have done what no invading army could do: they destroyed an American city with total impunity on behalf of something called the "bottom line." But the bottom line for society includes other costs, those of unemployment, crime, higher divorce rates, alcoholism, child abuse, lost savings, and wrecked lives. In this instance what was taught in the business schools and economics departments did not include the value of good communities or the human costs of a narrow destructive economic rationality that valued efficiency and economic abstractions above people and community.

My fifth principle follows and is drawn from William Blake. It has to do with the importance of "minute particulars" and the power of examples over words. Students hear about global responsibility while being educated in institutions that often invest their financial weight in the most irresponsible things. The lessons being taught are those of hypocrisy and ultimately despair. Students learn, without anyone ever saying it, that they are helpless to overcome the frightening gap between ideals and reality. What is desperately needed are faculty and administrators who provide role models of integrity, care, thoughtfulness, and institutions that are capable of embodying ideals wholly and completely in all of their operations.

Finally, I would like to propose that the way learning occurs is as important as the content of particular courses. Process is important for learning. Courses taught as lecture courses tend to induce passivity. Indoor classes create the illusion that learning only occurs inside four walls isolated from what students call without apparent irony the "real world." Dissecting frogs in biology classes teaches lessons about nature that no one would verbally profess. Campus architecture is crystallized pedagogy that often reinforces passivity, monologue, domination, and artificiality. My point is simply that students are being taught in various and subtle ways beyond the content of courses.

Muslim Law

2012-05-09T08:40:00.002-07:00

DOWER

Definition of ‘mahr’

BAILLIE: dower is not the woman for entering into the contract; but an effect to the contract imposed by the law on the husband as a token of respect for its subject, the woman

ABDUR RAHIM (On the basis of Hedaya): “ It is either a sum of money or other form of property to which the wife becomes entitled by marriage … It is an obligation imposed by law on the husband as a mark of respect for the wife … (This definition has adopted by Mulla also).

TYABJI: “Mahr or dower is sum that become payable by the husband to the wife on marriage, either by agreement between the parties, or by operation of law.”

The nature of dower

Mahmood, J; in Abdul Kadir v. salima, gives the best description of the nature of dower. He observes:

Dower, under the muhammadan law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife as a necessary effect of marriage. To used the language of the hedaya, the payment of dower is in enjoyed by the law merely as a token of respect for its object (the woman), wherefore the mention of it is not absolutely essential to the validity of a marriage and for the same reason a marriage is also valid although a man were to engage in the contract on the special condition that there should be no dower.

Even after the marriage the amount of dower may be increased by the husband during converture; in this sense and no other can dower under the muhammadan law be regarded as Arabic textbooks of muhammadan law have compared it to price in the contract of sale it is simply because marriage is a civil contract under that law and sale is the typical contract which muhammandan jurist are accustomed to refer to in illustrating the incident of other contract by analogy.’’ (Italics are mine).

The line of reasoning based on the analogy of sale was criticised by Ameer Ali and by sir shah Sulaiman in anees begum v. mohd Istefa and in Wajid Ali khan case. Sir sulaiman observed:

“It is quite obvious that the analogy of sale cannot be carried too far. The marriage cannot be regarded as purely a sale of the person by the wife in consideration for the payment of dower.”

It was observed in this case that the similarity of dower to sale price cannot be pushed in too far nor can the principles the governing the sales of the goods be applied in all their details. For examples the contract of sale of goods can be cancelled if a portion of the price has not been paid. Even if the goods have been once delivered they may in such an even be returned. But if consummation of marriage has taken place and the wife at her could cancel a part of the dower remains unpaid, it would be absurd to think that marriage will. Moreover the question –whether the dower is the consideration for the first consummation of marriage only or whether it is the consideration for the first consummation of marriage only or whether it is the consideration for the society of the wife during the married life? –Could not be answered by applying the analogy of sale to dower money and marriage.

Islam insists that dower should be paid to the wife herself. It sought to make dower into a real settlement in favour of the wife a provision for the rainy day and socially a check on the capricious exercise by the husband of his almost unlimited power of divorce.

A husband thinks thrice before divorcing a wife when he knows that upon divorce the whole of dower would be payable immediately.

There is a classic example given by someone, which must be mentioned here. A person purchases a horse. To whom he must pay the price? Not to the horse itself, certainly. But to the owner. Thus, if dower be regarded as sale-price, it must be paid to the guardian of the wife. Since it is paid to the wife herself, it cannot be the price. It is a token of respect.

Kinds of dower:

Broadly, there are two kind of dower:(i) specified, and (ii) unspecified. But the specified dower has been further divided into- (a) prompt, and (b) deferred.

(i) Specified dower – An amount settled by the parties at the time of marriage or after, is called specified dower. If the bridegroom is minor, his father may settle the amount of dower, but according to Shia law, he will be so liable.

The husband is bound to pay the amount of the specified dower, however exercise or beyond the reach it may be. In oudh, however, the excessive amount may be curtailed to a reasonable amount.

Prompt and deferred dower: - prompt dower is payable on demand, and deferred dower is payable on the dissolution of marriage by death or divorce. The wife may realize the prompt portion of the dower at any time before or after consummation, but the deferred dower could not be so demanded.

In the case where it is not settled how much of the dower is prompt and what part of it is deferred, the Shia law holds that the whole of dower is prompt; the Sunni law, however, holds that only a part is prompt. This part is to be fixed with reference to (i) custom, or (ii) the status of the parties, and (iii) the amount of settled dower.

There are two aspect of the prompt dower (mahr-i-muajjal)- the time factor and quantum factor. Prompt in theory means immediately on demand or at the time of marriage, or at any time before consummation, or after consummation when demanded. In practice, however, it is seldom paid promptly at the time of marriage or even when demanded; and equally tardily demanded. We may illustrate the point with the facts of a recent case E.V. Kunhimariam Vs. O. Mammu. In the word of justice Sukumaran.

(ii) Unspecified dower: - in such case where dower has not been settled at the time of the marriage or after, it is fixed with reference to the social position of the wife’s family and her own personal qualification. Help would be taken by taking into accounts of dower fixed in case of wife’s sister, paternal aunts, etc., and according to the hedaya, the wife’s age, beauty, intellect and virtual will also be considered. Such dowers are called mahr-ul- misl.

Under school of Muslim law, even where the wife stipulates that she will not demand any dower, she remains entitled to it and the rule of estoppels will not apply to her. This implied dower is called proper dower, or customary dower or mahr-i-misl or mahr-ul-misl.

Subject matter of dower

The fitting subject matter of dower is not only confined to a sum of money or property; it includes personal services and other thing. The following were recognized as the subject of dower.

(i) A handful of dates (Abu Daud)

(ii) A pair of shoes (Tirmizi)

(iii) If the husband is a slave, his services to his wife (Mohit Sakhsee)

(iv) The services of the husband slaves to the wife (Fatawa-i-Alam-giri)

(v) Husband services rendered to the guardian o f a minor wife (Durrul Mukter)

(vi) Teaching Koran to the wife (Tradition).

In fact, the main contention of the Muslim jurists is that anything, which comes within the defination of maal, can be the subject matter of dower.

Maximum and minimum amount of dower:

Minimum –hanafis-10 dirhams (Rs 5-6 after devaluation).

Malikis –3 dirhams (Rs 1.50-2 after devaluation).

Shafiis

Shias

Maximum – among Sunnis there is no maximum; any amount may be fixed. Fyzee cites an example based on his personal knowledge, of a dower amount of Rs 2,20,00,000.

Among some of the sects of shias, however, there is a tendency not to stipulate for a sum higher then the minimum fixed by the prophet for his favourite daughter Fatima, the wife of Ali, namely 500 dirhams (Rs 100 approximately).

Amounts of dower and conditions of payment

(1) If the marriage is consummated, and is dissolved by death:

(a) Whole of the specified dower, or

(b) Proper dower if unspecified,

(2) If the marriage is not consummated, and is dissolved by the act of party;

(i) When divorce by the husband –

(a) Half of the specified dower,

(b) A present of three articles, if unspecified

(ii) When divorced by the wife: no dower.

(iii) If the marriage is irregular in the case.

(1) and (2) above.

Bangladesh:

The role of the Kazi (Kadi, Qadi, Qazi; Islamic judge) in Muslim marriage Research Directorate, Immigration and Refugee Board, Ottawa This Response to Information Request provides information on the role of the Kazi (Kadi, Qadi, Qazi; Islamic judge) in Muslim marriage in Bangladesh. Most of the information in this Response was provided by the following specialists:

A New Orleans-based Senior Research scientist who is a member of the editorial board of News from Bangladesh, an Internet-based daily published in Dhaka (18 Mar. 2000). An article authored by the research scientist, "Tying the Knot Without any Dowry and Without a Kazi," was published in the 8 February 2000 issue of the Dhaka-based Daily Star;

The Coordinator of the Dhaka-based women's human rights and development organization, Naripokkho (29 Mar. 2000). Additional information on Naripokkho can be found in BGD23835.E of 6 May 1996;

A Dhaka-based human rights lawyer who specializes in women's and children's rights (11 Apr. 2000). The lawyer, also a member of Naripokkho, coordinates the group's "Monitoring Intervention to Coordinate Violence Against Women" project. She is also a member of several national and regional human rights organizations and networks;

A professor in the Department of Law, Brussels Catholic University (12 Apr. 2000). The professor did his undergraduate law degree in Bangladesh, where he also worked as a lawyer at the Dhaka Court. In Belgium he studied International and Comparative Law, including European Union law, and teaches a course in non-European legal culture to students studying for the Master of Legal Theory (LL M). He writes on human rights issues for the Dhaka-based Daily Star and Holiday, and has published articles in international journals.

1. What is the Kazi legally empowered to do both under Muslim marriage law and civil family law?

The Dhaka-based human rights lawyer stated that there are two types of marriage in Bangladesh: religious marriage, which takes place under religious laws specific to each religious community (Hindu, Muslim and Christian), and civil marriage, which is sanctioned by the Civil Marriage Act, 1872. The research scientist clarified that Kazis are not permitted to become involved in civil family law, and that people who require an interpretation of civil law must go through the civil court system.

The human rights lawyer stated that Kazis are legally empowered to register Muslim marriages and divorces. The professor of law agreed, but offered a more detailed explanation of the legal powers of Kazis with regard to Muslim marriage and divorce:

Kazi is not a word in law in Bangladesh. Legally speaking they are the "Nikah Registrar", appointed by the government under the Muslim Marriages and Divorces (Registration) Act, 1974, and rules framed there under, the Muslim Marriages and Divorces (Rules), 1975. Each Kazi is appointed to a defined locality where their job is registration of Muslim marriages and divorces within the given area. According to a recent High Court decision, Nikah Registrars are "public" servants (Kazi Obaidul Haque vs. State 55 DLR (1999) 25).

Although they have a religious basis, marriages in Bangladesh are essentially contracts and are regulated by legislation, especially registration of marriages and divorces, that are not a necessary ingredient of Islamic law. So as public servants, the Kazis merely register marriages and divorces.

2. Can the Kazi perform a marriage ceremony, and if so, would the marriage be recognized as a legal marriage by the state?

The professor of law provided the following information on the Muslim marriage ceremony and the role of the Kazi:

In Muslim marriages, no ceremonies are needed to effect a legal marriage except proposal of marriage and acceptance thereof to take place at the same time and preferably dower amount is determined.

A Kazi thus doesn't perform marriage in this sense. His job merely is to register it; however, he has to be satisfied that all necessary elements of a valid marriage exist before registration.

The aspect of a Muslim marriage having religious significance is usually conducted by the family or local Mullah or even by the Kazi himself.

The human rights lawyer, the research scientist, and the Naripokkho coordinator all agreed, however, that Kazis do perform marriage ceremonies in Bangladesh. The human rights lawyer stated that Kazi-performed marriages are not just legal but the norm in Bangladesh. According to the research scientist, marriages performed by Kazis are "universally recognized in Bangladesh."

3. Can the Kazi perform a marriage ceremony in a private residence or only in his office? Is he restricted in any way? Can he perform a marriage anywhere?

All of the specialists agree that there are no restrictions on where a marriage may take place, and thus a Kazi may perform a marriage ceremony in his office, a private residence, or anywhere else. The human rights lawyer stated that the bride and groom generally determine where the ceremony will take place, but according to the research scientist most marriage ceremonies are still performed by Kazis at the bride's residence. He clarified that while in urban areas the bride's parents normally will rent a location for the purpose of the wedding ceremony, in semi-urban or rural areas the Kazi generally still comes to the bride's residence.

The professor of law offered additional information on the role and responsibilities of the Kazi:

... a Kazi can perform a marriage anywhere including in a private residence, or for that matter at any other place, as long as he carries his register book to register it. If he is requested by the parties to lead the religious part, he also could do so.

Thus he is not restrained in any way, nor is the registration required to take place at his office. However, he is obliged to maintain an office and preserve the records.

4. At what point in the marriage process do the bride and groom discuss column 18 of the marriage contract (Nikahnama), which pertains to delegation to the wife of the power of divorce?

The professor of law stated that the vast majority of marriages in Bangladesh are arranged by the families of the bride and groom. Even with love marriages, i.e. where the bride and groom courted beforehand, in most cases the marriage is organized by the families.

All of the specialists agreed that column 18 of the marriage contract is normally discussed before the marriage ceremony. The professor of law stated that all of the terms and conditions of the marriage contract, not just column 18, are usually discussed before the marriage by the elder members of both families. According to the coordinator at Naripokkho, column 18 should be raised when the families are discussing the amount of mahr [property or money bestowed upon the bride for her personal use, in particular to ensure her immediate financial welfare in the event of divorce] to be exchanged, and even before approaching the Kazi. All of the specialists stated that the issue is raised again when the Kazi reaches column 18 of the marriage contract, before final solemnization of the marriage. The research scientist stated that the Kazi twice will loudly announce all of the terms and conditions of the marriage-once in the presence of the groom and the guests, and a second time in the female quarter where the bride is located. The professor of law stated that sometimes heated arguments about the conditions of the Nikahnama will break out between the families.

According to an article published in the 9 April 2000 issue of The Daily Star, in the past women were not allowed to divorce their husbands unless the power was expressly delegated in the marriage contract. However, even if the power to divorce was not delegated to the bride, a woman could still sue for dissolution of marriage under the Family Court Ordinance, 1985 (ibid.). The article further states that the current practice is to give women the power to divorce, regardless of whether it is specifically delegated in the marriage contract. The coordinator of Naripokkho, who recently was married, stated that unless the families object, Kazis are informally instructed to put it in the affirmative. In other words the default mode for column 18, which asks "Has the groom delegated his wife the power to divorce," is "yes."

5. Does the Kazi give a copy of the marriage contract to the bride as well as to the husband? If so, when?

The professor of law, the research scientist and the human rights lawyer stated that a copy of the marriage contract is available after it has been registered by the Kazi and a small registration fee paid. The research scientist stated that a copy of the marriage contract is usually picked up from the Kazi's office one or two weeks after the marriage ceremony. The coordinator of Naripokkho stated that the copy must be picked up from the Kazi's office within one month. The human rights lawyer and coordinator of Naripokkho stated that the Kazi is obligated to provide the couple with only one certified copy of the marriage contract, but the professor of law stated that both the bride and groom could get copies if they wished, since they are provided upon payment of a fee.

6. When is the marriage registered, and by whom and with whom? Is it registered with the mosque or with a central religious or government body? What happens to the original copy of the marriage contract?

According to Human Rights in Bangladesh 1998, the annual report published by the Bangladeshi human rights NGO Ain-O-Salish Kendro (ASK), despite the Muslim Marriages and Divorces (Registration) Act requirement that all Muslim marriages be registered, an estimated 40 per cent of all such marriages remain unregistered (1999, 142).

All of the specialists agreed that as the government-appointed Nikah Registrar, the Kazi has the authority to register marriages in Bangladesh. The human rights lawyer and the professor of law stated that under Muslim marriage law, only Kazis are empowered to register marriages in Bangladesh. If someone other than a Kazi, such as a religious figure, performs a marriage ceremony, he must inform the local Kazi within a specified period of time.

The professor of law stated that a marriage should be registered at the time it is solemnized, but sometimes the Kazi collects only the most necessary information to post in the register book. He also indicated that although both bride and groom must sign the register, in many instances the bride's signature is either not taken or ignored. The research scientist stated that the record in the Kazi's register is the primary evidence of marriage in Bangladesh, and that it is unlikely one could challenge its validity.

The coordinator of Naripokkho, the professor of law, and the research scientist all stated that the original copy of the marriage contract is maintained at the Kazi's office. According to the coordinator of Naripokkho, there is no central government body that maintains marriage records.

7. Can a parent or friend obtain a copy of the marriage contract on behalf of the wife or husband for the purpose of sending it abroad? If so, what if any documentation is required?

All of the specialists agreed that parents, close family friends and other authorized people can obtain official copies of the marriage contract from the Kazi's office. The research scientist stated that a copy of a marriage contract can only be obtained from the particular Kazi's office where the marriage was registered, and the person requesting the copy need only indicate the date and time the marriage was solemnized. The professor of law indicated that the Kazi should ascertain the identity and relationship to the wife or husband of the person requesting the copy.

According to the human rights lawyer,

A friend or relative who wishes to obtain a certified copy of a Nikahnama is not required to produce any specific document, only pay the fee. However, it is necessary to have some proof of the relationship between the wife/husband and the person who wants the copy of the Nikahnama. The Kazi usually ask for it, but there is no specific rule. The person only needs to show that s/he is genuine.

8. Who has the power to marry a couple? Can someone other than a Kazi, such as an Imam, perform a religious marriage?

All of the specialists agree that a Muslim religious figure such as an Imam can perform a religious marriage. According to the human rights lawyer, any adult male Bangladeshi can perform a marriage ceremony. The research scientist stated that while a Kazi-performed marriage is preferred, in rural areas any Muslim cleric can perform the ceremony. He noted as well that some magistrates can legally perform marriages. These are known as "court marriages." The research scientist also stated that while an Imam can perform a marriage ceremony, the marriage must be properly recorded in the ledger of the Kazi in whose district the bride's parents reside. The professor of law agreed that although Imams can and often do perform religious marriages, and although such marriages are not illegal under Bangladeshi law, legal consequences could follow if the marriage is not registered.

On 8 February 2000 The Daily Star reported that en masse community weddings, in which dozens of couples are married without a Kazi being present, are becoming increasingly popular in Bangladesh.

9. What if any role does the Kazi play in divorce proceedings?

The Naripokkho coordinator and the research scientist were uncertain about the Kazi's role in divorce proceedings. The coordinator speculated that he would have little more to do than to confirm the mahr amount and that the marriage actually took place, but added that this would be unnecessary when a marriage contract is available.

However, both the professor of law and the human rights lawyer stated that Kazis are responsible for registering divorces and maintaining the relevant documentation. The professor of law stated that a Kazi may register a divorce "only after it has reached finality by exhausting the procedures laid down by law. The Kazi has merely to ascertain, before registration, that the legal procedures have been observed."

According to the human rights lawyer, the Kazi must also supply a copy of the divorce registration when required, such as in a remarriage.

10. Would any of the foregoing be dependent on rural or urban location?

All of the specialists agreed that the laws regarding registration of marriage and divorce are applicable to both cities and villages. However, three of the specialists indicated that there may be significant variance in practice between urban and rural areas. According to the professor of law, "in real life, in the villages and even on occasions in deprived urban communities, marriages still are performed and not registered, and other procedures flouted." The research scientist agreed, stating that "in urban settings most marriages are recorded in the Kazi's ledger, but in rural settings it depends. In the hinterlands or obscure places, it is doubtful that anyone bothers to go to the Kazi's office." The Naripokkho coordinator explained that in rural areas "there are many fewer Kazis, ... [so] the chances of being married by a Kazi ... are not as great. Kazis who go to urban homes to perform marriage ceremonies are less keen to do so in rural areas. As well, they may not write 'yes' for #18 [of the marriage contract]."

Additional information on marriage in Bangladesh can be found in BGD28420.EX of 29 January 1998. Additional information on the role of the Kazi in divorce proceedings can be found in BGD33257.E of 25 November 1999.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

Pre-Islamic background:

Among the pre-Islamic Arabs, the power of divorce possessed by the husband was unlimited. They could divorce their wives at any time, for any reason or without any reason.

According to Abdur Rahman at least four various types of aissolution of marriage were known in pre-Islamic Arabia. These are talaq, Ila, zihar and khula.

After the advent of Islam

The prophet of Islam looked upon these customs of divorce with extreme disapproval and regarded their practice as calculated to under the foundation of society. It was impossible, however under the existing condition of society to abolish the custom entirely. The reforms of Prophet Mohammad marked a new departure in the history of eastern legislation. Ameer Ali asserts:

“The permission (of dower), therefore, in the Koran though it gave a certain countenance to the old custom, has to be read in the light of the law-giver’s own enunciation. When it is borne in mind how intimately law and religion are connected in the Islamic system it will be easy to understand the bearing of his words on the institution of divorce.”

Fyzee says that it is sometimes suggested that the greatest defect of the Islamic system is the absolute power gives to the husband to divorce his wife without cause. Dower to some extent restricts the use of this power.

Modes of dissolution of marriage

Among the books on Muslim law, including that of Baillie, Willson, Tyabji, Ameer Ali, Mulla and Saksena, Fyzee has given the best classification of divorce. His method of classification is more scientific and easy to grasp and hence, it has been adopted here with little additions.

Classification:

A. By the death of husband or wife

B. By the act of parties

By the husband:

(i) Talak:

(a) Talak-us-sunnat: Ahsan (most approved)

Hasan (approved)

(b) Talak-ul-biddat: triple divorce. One irrevocable divorce (generally in written)

(ii) Ila (vow of continence).

(iii) Zihar (injurious comparison).

By the wife:

Talak-e-tafwid (delegated divorce).

By mutual consent:

(i) Khula (redemption).

(ii) Mubarat (mutual freeing).

By judicial process

1. Lian (redemption).

2. Faskh (judicial annulment).

A. By the death of husband or wife- It is clear and natural that with the death of husband or wife the marriage tie comes to an end. When the wife dies, the husband may remarry immediately, but in case of husband’s death, widow has to wait till the expiry of iddat (4 months and 10 days, or if pregnant, till delivery).

B. By the act of parties

1. By the husband:

(i) Talak: talak means by dissolution of marriage. In its literal sense this Arabic word means “taking off any tie or restraint”, and in law it signifies the dissolution of marriage. In hanafi law, no special form or phrase is necessary to pronounce talak. The Ithna in ashari law, however, insist on strict adherence to a from, that is, must be in the Arabic language uttered orally, in the presence and hearing of two male witnesses, who should be honest and virtuous Muslim. Even the presence of the wife is not required. In fact, while facing proceedings for maintenance, as for example under section 488, CrPC, it is a common practice for the husband ti take the plea that he had pronounced talak on his wife, and the court regard it as a conclusive fact of completed divorce.

(a) Talak-us-sunnat. That is, a talak which carries the approval of the prophet. It may be in the most approved form, i.e., ahsan; or hasan, i.e., simply an approved forms.

Ahsan- hedaya brands it as the most laudable divorce, where the husband repudiates his wife by a signal pronouncement in a period of tuhr (purity, i.e., when the wife is free from her menstrual courses), during which he has not had intercourse with her, and then leaves her to the observance of iddat. The divorce remains revocable during the iddat, and the parties retain the right of inheritance. After the iddat period lapsing without revocation, the talak becomes final and irrevocable.

Hasan: in talak hasan, the husband successively pronounces divorce there time during consecutive periods of purity (tuhr). It is therefore, ‘a divorce upon a divorce’, where the first and second pronouncements are revoked and followed by a third, only then talak becomes irrevocable. It is also essential that no intercourse should have taken place during that particular period of purity in which the wife is in tuhr, without having intercourse with her, the husband pronounces talak. Then he revokes it by words or by intercourse. Menstruation follows. Again when she is tuhr, and before intercourse, the husband pronounces talak. Now during tuhr, without having had intercourse, he pronounces talak. This is final, and divorce becomes irrevocable.

(b) Talak-ul-biddat. - Here the husband does not follow the approved form of talak of talak i.e., talak –us-sunnat, and neither pays any attention to the period of purity nor to the abstention from intercourse. This was an escape lane from the restrictions imposed by the prophet, as we saw just above. As by the prophet on the facility of repudiation interfered with the indulgence of their caprice, endeavourer to find as escape from the strictness of law and found a loophole to effect their purpose.

Talak- when becomes irrevocable. - (i) talak ahsan becomes irrevocable on the completion of the period of iddat. (ii) Talak Hasan comes into force on the very point when the third pronouncement is made. Iddat factor has no influence on it. (iii) Talak-ul-biddat of both types-triple and signal-also becomes irrevocable right on pronouncement. (iv) In case of unconsummated marriage talak becomes irrevocable right on pronouncement. (v) A written talak comes into effect from the moment of its execution, unless it is ambiguous.

(ii) Ila (vow of continence). - Ila is when a person swears that he will not have sexual intercourse with his wife and abstains from it for four month, the divorce is affected. The Hanafi jurists argue that since the husband acted

Unjustly towards his wife, it is equitable that on the expiration of four months the should be deprived of the benefit of marriage. The shafiis and shias consider that such a vow does not amount to divorce, but only gives the wife a ground to seek judicial divorce. In Sunni law legal proceedings are not required. The intent of the husband must be expressed clearly. Even after the expiry of 4 months the husband can cancel ILA with the assent of the wife. ILA is not in practice in India.

(iii) Zihar (injurious comparison). –Zihar signifies a husband’s comparison of his wife with his mother or any female relation within the prohibited degrees. In zihar, the usual phrase is “thou art to me as the back of my mother”. According to ameer Ali the intention of the husband must be to show disrespect to the wife. Zihar is also out of vogue. These words do not naturally come to Muslims in India.

2. By the wife. - Talak-e-tafwid (delegated divorce).

Baillie defines it as follows.

“As a man may in person repudiate his wife, so he may commit the power of repudiating her to herself or to a third party.”

That is, the husband may delegate the power of divorce to his wife. He may do not so at the time of marriage contract or any time when he so likes.

This doctrine is peculiar to the Muslim law and has no parallel in other system. The Indian high court have repeatedly held as valid the agreement by which the husband authorizes the wife to divorce her-self from him in the event of his marrying a second wife without her consent.

3. By mutual consent.

(i) Khula (redemption) - if the mutual relationship between the husband and wife is not good, the wife, if she so desires, may seek a khula divorce, e.g. by relinquishing her claim to the dower. A husband may similarly propose a khula divorce; the wife or refuse it. If she accepts, it means that she relinquished the right to get dower from her husband. Khula may be for any consideration-dower, money, property, etc.

(ii) Mubarat (mutual freeing). - When the divorce is effected by mutual consent of the husband and wife, it is known as mubarat’ at (i.e. freeing one another mutually).

Iddat is compulsory after mubara’ at as after khula. Aquil Ahmad notes the following points of difference:

-Redemption of the contract of marriage

-Mutual release from the marital tie.

-Offer comes the wife, husband accepts

-Any party may make the offer, the other side accepts.

-Consideration passes from wife to husband

-No question of consideration

-Aversion is on the side of the wife

-Mutual aversion

B. By judicial process:

(i) Lian (mutual imprecation). -The wife is entitled to sue to for a divorce on the ground that her husband has falsely charged her with adultery. At the hearing of the suit, the husband had two alternatives: (a) he may retract (withdraw) the charge before the end of the trial, in which case the wife could not get a divorce, or (b) to persist in his attitude, whereby he will be required to accuse his wife on oath. This is follow by oaths of innocence made by the wife. After these “mutual imprecation”, the court dissolves the marriage. In a lian suit the burden of proof lies on the wife. According to malik this holding is against Muslim law where it is provided that the husband must prove the charge of adultery or suffer the consequences.

(ii) Faskh (judicial annulment). - Faskh means annulment. It refers to the power of kazi (in India, law court) to annul a marriage on the application of the wife. The law of faskh is founded upon Koran and traditions, “if a woman be prejudiced by a marriage, let it be broken off”. (Bukhari). In India, such judicial annulments are governed by section 2 of the dissolution of Muslim marriage act, 1939. Prior to the act, the Muslim woman could apply for dissolution of marriage under the doctrine of faskh on 4 grounds:

(a) The marriage was irregular,

(b) In exercise of the right of option- khyar-ul-bulugh,

(d) Post-marriage conversion of the parties to Islam.

Effect of divorce:

(i) Cohabitation becomes illegal between the couple.

(ii) Dower becomes payable to the wife.

(iii) The husband and the wife are entitled to inherit from the other, if either of them dies during iddat following a revocable divorce. No right of inheritance arises in irrevocable divorce.

(iv) The wife becomes entitled to maintenance during the period of iddat.

(v) Remarriage between the couple is only possible after observing a strict procedure. Remarriage with another man can be contracted by the widow after observing iddat only.

Grounds of decree for dissolution of marriage:

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the husband of the following ground, namely: -

(i) That the whereabouts of the husband have not been known for a period of four years;

(ii) That the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) That the husband has been sentenced to imprisonment for her of seven years or upwards;

(iv) That the husbands has failed to perform, without reasonable cause, his marital obligations for a period of three pears;

(v) That the husband was impotent at the time of the marriage and continues to be so;

(vi) That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii) That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

(viii) That the husband treats her with cruelty, that is to say;

(a) Habitually assaults her or make her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) Associates with woman of evil repute or leads an infamous life, or

(d) Disposes of her property or prevents her exercising her legal rights over it, or

(e) Obstructs her in the observance of her religious profession or practice, or

(f) If he has more wives then one, does not treat her equitably in accordance with the injunction of the Koran.

(ix) On any other ground which is recognized as valid for the dissolution of marriage under Muslim law. Provided that-

(a) No decree shall be passed on ground (iii) until the sentence has become final;

(b) A decree passed on ground (i) shall not take effect for period of six months from the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the court that he is prepared to perform his conjugal duties, the court shall set aside the said decree; and

(c) Before passing a decree on ground (v) the court shall, on application by the husband, make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent and if the husband satisfies the court within such period, no decree shall be passed on the said ground.

Lecturer _ Farhana Madam.

Civil Procedure Code

2012-05-06T03:13:00.001-07:00

If an appeal be dismissed for default of the appellant is then any scope for re-admission of appeal? Give your answer under order 41 rules 19 and 19A?

Yes, an appeal is dismissed for default of the appellant. Where the appellant was not present on the hearing of the appeal and the court dismissed the appeal. After that the appellant apply to the court for re-admission under order 41 rule19 and 19A. According to Order XLI rule 19 of Code of Civil Procedure;

“where an appeal is dismissed under rule 11, sub-rule (2), or rule 17 or rule 18, the appellant may apply to the Appellant Court for re-admission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the court shall re-admit the appeal on such terms as to costs or otherwise as thinks fit.

The limitation act section 5 (condo nation of delay) will apply to the application under order 41 rule 19.

According to Order XLI rule 19A of Code of Civil Procedure;

“notwithstanding anything contained in rule 19 or any other law, the court may in order to avoid and expedite disposal directly re-admit without requiring the appellant to adduce evidence to satisfy it about sufficient causes as required under rule 19”.

Under Order 41 rule 19A there is no provision of payment of cost and no appeal shall be re-admitted more then once. As soon as an order under Order 41 rules 19A (i) is passed the notice shall be issued upon the respondent at the cost of appellant.

Re-admission and re-hearing? Can a court directly re-hear the appeal?

Re-admission- In general sense re-admission means a second or subsequent admission. Re-admission is an admission procedure followed by a person who was previously enrolled at Grand Valley and then dismissed or suspended.

Rehear-To hears again. In according to law rehear means hear or try a court case anew.

Yes, the court directly re-hears the appeal. According to Order 41 rule 21A of the Code of Civil Procedure;

“Notwithstanding anything contained in rule 21 or any other law, 21A the court may in order to avoid delay and expedite disposal directly re-hear an appeal which is heard exparte without requiring the respondent to adduce evidence to satisfy it about sufficient causes as required under rule 21”.

Under Order 41 rule 21A the respondent may apply to the appellate court for re-hearing the appeal when the court dismissal exparte and there is clear provision for payment of cost be which shall not exceeds TK 3000. Under Order 41 rule 21A such notice shall issued upon the appellant at the cost of the respondent and no appeal shall be re-heard more than once.

Provision relating to the jurisdiction of the Small Causes Court Act? Can a Small Causes Court take cognizance of a suit concerning any act done by the government?

The provision relating to the jurisdiction of the Small Causes Court Act (1887) are in the following:

According to section 15 and 16 of the Causes Court Act (1887);

Cognizance of suits by Courts of Small Causes.

15. (1) A Court of Small Causes shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes.

(2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed 1[ twenty five thousand Taka] shall be cognizable by a Court of Small Causes.

(3) Subject as aforesaid, the Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed 2[thirty thousand Taka] shall be cognizable by a Court of Small Causes mentioned in the order.

Exclusive jurisdiction of Courts of Small Causes.

16. Save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.

Return of plaints in suits involving questions of title.

23. (1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immoveable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.

(2) When a court returns a plaint under sub-section (1), it shall comply with the provisions of the 1[ Code of Civil Procedure,

1908, Schedule I, Order VII, rule 10]; and make such order with respect to costs as it deems just, and the Court shall, for the purposes of the 2[ Limitation Act, 1908], be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction.

Answer of the question no (b): No, a Small Causes Court can not take cognizance of a suit concerning any act done by the government. Because Schedule no (ii) of the Small Causes Court which contained the suit excepted from the cognizance of a Court of Small Causes. And according to second schedule clause 1;

“A suit concerning any act done or purporting to be done by or order of the (Government)”.

Distinction between the-

(I) Revision and appeal;

(ii) Revision and review?

Appeal: Appeal is a process of re-examination of the judgment and decree, or order or the decisions passed by the original court is a suit or in a case. The expression “appeal” has not been defined in the code, but it may be defined as “the judicial examination of the decision by a higher court of the decision of an inferior court”.

Revision: Revision is re-working and re-writing. Revision, meaning "to see again," takes place during the entire writing process as we change words, rewrite sentences, and shift paragraphs from one location to another in our essay. Revision means the action of revising, especially critical or careful examination or perusal with a view to correcting or improving.

The distinction between the appeal and revision in the following:

(a) An appeal lies to a superior court, which may not necessary be a High Court, while a revision application under the code lies only to the High Court.

(b) An appeal lies only from the decrees and appealable order, but a revision application lies from any decision of a court subordinate to the High Court from which no appeal lies to the High Court or to any subordinate court.

(c) A right of appeal is a substantive right conferred by the statute, while the revisional power of the High Court is purely discretionary.

(d) An appeal abates if the legal representatives of a deceased party are not brought on record within the prescribed period. A revision application however does not abate in such case. The High Court may at any time bring the proper parties on the record of the case.

(e) The grounds for an appeal and revision application are also different. An appeal lies on a question of fact or law or of fact and law, while a revision application lies only on the ground of jurisdictional error.

(f) In case of appeal the memorandum of appeal must be filed before the appellate court by the aggrieved party, but filing of an application is not necessary in case of revision.

(g) Ordinarily appellate jurisdiction involves rehearing on question of law as well as on facts of the case whereas revisional jurisdiction involves only the question of law and this jurisdiction is never considered a rehearing.

(h) An appeal is considered to be a consideration of the original proceeding whereas unlike appeal revisional is not the constitution of the original proceeding.

(i) An appeal is a right based remedy and can be claimed as of right if there is statutory existence of it, where the revision is the purely discretionary remedy and cannot be claimed as of right.

Appeal: Appeal is a process of re-examination of the judgment and decree, or order or the decisions passed by the original court is a suit or in a case.

Review: in simple word review means to reconsider, to look again or to re-examine. In legal parlance, it is a judicial re-examination of the case by the same court and by the same judge.

The distinction between the appeal and review are in the following:

(a) An appeal lies to the superior court, while a review lies to the same court.

(b) An appeal heard by a different judge, while a review of a judgment involves reconsideration of the same subject matter by the same judge.

(d) An appeal lies on a substantial question of law, while a review application does not lie.

In a suit which several reliefs are sought based of different cause of action the method of calculation court fess are contain section 17 (1) of the Court Fees Act 1870;

“in any suit in which two or more separate and distinct causes of action are joined and separate and distinct reliefs are sought in respect of each, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees with the plaints or memorandum of appeal would be chargeable under this act in separate suits instituted in respect of each such”

In a suit which several reliefs are sought based of same cause of action the method of calculation court fess are contain section 17 (2) of the Court Fees Act 1870;

“Where more reliefs than one based on the same cause of action are sought either jointly or in the alternative, the fee shall be paid according to the value of the relief in respect of which the largest fee is payable”

Yes, there are document exempted from payment of court fees. The list of such document contained section 19 of the Court fees Act 1870.

The name of the 3 documents stated not chargeable any fees are the following (which contained in section 19 of the Court fees Act 1870)

(1) Written statements called for by the court after the first hearing of a suit (section 19 (III));

(2) Written authority to an agent to distrain. (section 19 (XII));

(3) Application for the payment of money due by Government to the applicant. (Section 19 (XX)).

“Adjournment”?

To adjourn means to suspend until a later stated time. The act of postponing to another time or place. But in eye of law adjournment means shifting of a date fixed for hearing of a suit.

According to the order XVII rule 1 of the Code of Civil Procedure “the court may if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit”. In every such case the court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment.

The provision relating to adjournment in an appeal in view of order XLI rule 12A of the Code of Civil Procedure are following:

(1) The appellate court shall not grant more then three adjournments for hearing of an appeal at the instance of either party to the appeal, and any adjournment granted to a party beyond the aforesaid limit shall make such party liable to pay such cost which shall not be less than two hundred taka and more than one thousand taka to the other party as the court may deem appropriate and determine, non-compliance with which, by the appellant shall render the appeal liable to be dismissed and, by the respondent shall render the appeal liable to he disposed of ex parte.

(2) An appeal dismissed or disposed of ex parte under sub-rule (1) shall not be revived for hearing unless the party, for whose non-compliance the appeal was dismissed or disposed of ex parte, makes within thirty days of such dismissal or ex parte disposal, an application to the court for such revival; and upon such application being made, the court shall award such cost as shall not be less than two hundred taka and more than one thousand taka; as it may deem appropriate and determine, and the cost being deposited, the appeal shall be revived for hearing without any further proceeding; and the cost deposited in the court shall be paid by it to the other party; provided that no appeal shall be revived more than once at the instance of the same party under this rule.

(3) The Appellate Court shall not, of its own, order any adjournment at the stage of hearing of appeal without recording reasons there for.

Four point that are to be proved for order of temporary and permanent injunction:-

(i) Threat

(ii) Primafacie title and case

(iii) Balance of convenience and inconvenience

(iv) Irreparable loss.

Interlocutory order

On the application of any party to a suit the court may pass an order which is not final order in the suit and such order is called an interlocutory order. An interlocutory order does not dispose of the suit. This type of order reserves some further question of law and of fact for determination. Before granting an of application of temporary injunction the court may also pass a order restraining the other side passing a order in an interlocutory form. This kind of order may also be term as ad interim order.

v Alternative dispute resolution is three kinds:

1. Arbitration

2. Mediation

3. Settlement.

1. Pauper: The main them of the provision relating for the application to file a case, as a pauper to make the justice available in substance to all without any discrimination of financial status of the citizens of a country.

Order (xxxiii) rule 1 of the civil Procedure Code are defined the term pauper in the following:

A person is a “pauper” when he is not possessed in the sufficient means enable to him to pay the fess prescribed by the law for the plaint of such suit, and where no such suit is prescribed when he is not entitled property worth 5000 taka other then his necessary wearing apparel and subject matter of the suit.

2. Receiver: The term ‘Receiver’ has not been defined in the Code of Civil Procedure. According to Kerr, he is “an impartial person appointed by the court to collect and receive, pending the proceeding, the rents, issues and profit of land or personal estate, which it does not seem reasonable to the court that either party should collect or receive, or for enabling the same to be distributed among the persons entitled’.

In other words, he is an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite when it does not seem reasonable to the court that either party should hold it.

According to rule 774 Civil Rules and Orders, the application under order 41 rules 19 and 21 Civil Procedure Code (1908) are registered as miscellaneous cases. But these two rules are in differences from each other. The differences between the order 41 rules 19 and 21 are following:

(i) Where the appellant was not present on the hearing of the appeal and the court dismissed the appeal. After that the appellant apply to the court for re-admission under order 41 rule19. On the other hand, the respondent is not present at the time of hearing the appeal, and the court heard exparte and given judgment against the respondent then the respondent may apply to the court for re-hearing under order 41 rule21.

(ii) Order 41 rule 19 is applicable for the appellant; but order41 rule 21 is applicable for the respondent.

(iii) The appellant will apply under order 41 rules 19 when the court dismissed an appeal exparte; But the respondent shall apply under order 41 rules 21, when the court hear the appeal and give the judgment against exparte.

(iv) Under order 41 rule 19 the appellant may apply to the appellate court for re-admission of the appeal; But under order 41 rule 21 the respondent may apply to the appellate court for re-hearing of the appeal.

(v) Under order 41 rule 19 rule 19 the order of the cost is passed against the appellant; But under order 41 rule 21 the order of the cost is passed against the respondent.

(vi) The limitation act section 5 (condo nation of delay) will apply to order 41 rule 19; But there is no such under order 41 rule 21.

The both rules (order 41 rules 19A and 21A) have many differences from one another. The main differences between the order 41 rules 19A and 21A are the following:

(i) Where the appellant was not present on the hearing of the appeal and the court dismissed the appeal. After that the appellant apply to the court for re-admission under order 41 rule19A. On the other hand, the respondent is not present at the time of hearing the appeal, and the court heard exparte and given judgment against the respondent then the respondent may apply to the court for re-hearing under order 41 rule21A.

(ii) Order 41 rule 19A is applicable for the appellant; but order41 rule 21a is applicable for the respondent.

(iii) Under Order 41 rule 19A the application may apply to the appellate court for re-admission of the appeal, when the court dismissed exparte; But under Order 41 rule 21A the respondent may apply to the appellate court for re-hearing the appeal when the court dismissal exparte.

(iv) Under Order 41 rule 19A, the court may in order to avoid and expedite disposal directly re-admit without requiring the appellant to adduce evidence to satisfy it about sufficient causes as required under rule 19; But under Order 41 rule 21A the court may in order to avoid delay and expedite disposal directly re-hear an appeal which is heard exparte without requiring the respondent to adduce evidence to satisfy it about sufficient causes as required under rule 21A.

(v) Under Order 41 rule 19A there is no provision of payment of cost; But under Order 41 rule 21A there is clear provision for payment of cost be which shall not exceeds TK 3000.

(vi) As soon as an order under Order 41 rule 19A (i) is passed the notice shall be issued upon the respondent at the cost of appellant; But under Order 41 rule 21A such notice shall issued upon the appellant at the cost of the respondent.

(vii) Under order 41 rule 19A no appeal shall be re-admitted more then once; But under rule 21A no appeal shall be re-heard more than once.

The civil rule and order is a subordinate legislation- explains?

Yes the civil rule and order is a subordinate legislation. Because-

(i) The law makers i.e. the legislature has not made the rules of the civil rule and order.

(ii) Article 107 of the constitution of Bangladesh has given the power to the Supreme Court for making rules for the purpose of regulating the practice and procedure of the subordinate courts. According Article 107, “ (1)Subject to any law made by parliament the supreme court may with the approval of the president, make rules for regulating the practice and procedure of each division of the supreme court and of any court subordinate to it. (2) The supreme may delegate any of its function under clause (1) and article 113 to a division of that court or to one or more judges”.

(iii) According to section 122 of the Civil Procedure Code (1908), “the supreme court exercises its rule making power of all subordinate civil courts to regulate the practice and procedure”.

(iv) According to section 123 of the Civil Procedure Code, “A committee to be called the Rule Committee, shall be constituted for the purpose referred to in section 122. Such committee shall be consist of the following person (a) three judge of the supreme court, one of whom at least has served as a district judge for 3 years; (b) tow advocate of the civil court subordinate of the high court division; (c) a judge of the civil court subordinate to the high court division. The member of such committee shall be appointed by the civil judge, who shall also nominate one of their numbers to be president.

(v) According to section 124 the Rule Committee shall make a report to the Supreme Court on any proposal to annul, after or add to the rule in the 1st schedule or to make new rules, and before making any rules under section 122 the Supreme Court shall take such report into consideration.

So we can say that the civil rule and order is a subordinate legislation.

Daily cause list: A Daily cause list is to be prepared in a prescribed form and shall be posted in some conspicuous part of every court house for the information of the parties, their Advocates and the public. Cases and appeals shall be shown in the order in which they appear in the Dairy. Execution and Miscellancous may be shown either in the same list or separately.

The list shall prepare and posted not later than 1 PM on the working day preceding that to which the list relates. For the purposes of this list the case is sufficiently indicated by its number, years and class.

For example: Pre Misc (class) --------214(number) -------2005(year).

Lecturer_ Shibli Sir

Criminal procedure code & drafting

2012-05-06T02:58:00.001-07:00

There are two ways of filing criminal cases viz;
(1) C.R. Case- Complaint Registrar Case.
(2) G.R. Case- General Registrar Case.

C.R. Case: In drafting a complaint petition.

How to draft a complaint petition in a case of grievous hurt?

Complaint petition
In the court of Judicial Magistrate of the First class Dhaka.

C.R. Case No 15 of 2008.
Date of occurrence: 15/1/2008 at 15 hours.
A case under section 147/148/326/34 of Penal Code.
Abdur Rahman, S/O hate Abdul Ali of village kobi Para, P.S. Saver, district Dhaka………………..Complainant.

VERSUS
Vs.
(1) Ismile.
(2) Sujon.
(3) Matin. All sons of Abdul Mothalib all of village Sonatangar, P.S. Haziribag, district Dhaka………………………Accused.

Name of the witnesses:-
(1) Zahir S/O Karim, village of Zigatala, P.S. Mohhammed pur, District Dhaka.
(2) Shamim S/O Mofiz, village of Zigatala, P.S. Mohhammed pur, District Dhaka.
(3) Rafique S/O Modon, village of Zigatala, P.S. Mohhammed pur, District Dhaka.
(4) Raton S/O Kabir, village of Zigatala, P.S. Mohhammed pur, District Dhaka.
(5) Rajon S/O Farid, village of Zigatala, P.S. Mohhammed pur, District Dhaka.
The humble Petition of the complainant above named big most respectfully.
SHEWETH:-
1. That the complainant is a peace-loving person and he has a business establishment in local Bazar.
2. That the accused are turbulent people of the locality and they have engaged in various anti-social activities.
3. That on the above mentioned date and time the complainant has been coming back home after closing his shop from the local Bazar and all on a sudden the accused stopped the road of the complainant and demanded Cash money from him . The Complainant refused to give them money and the accused started beating the complainant up and all the accused started punching the complainant indiscriminately. At one stage accused Smile brought out a knife from his pocket and gave a blow in the chest of the complainant. This caused profuse bleeding and a grievous hurt. The complainant fell down on the ground and afterwards he was taken to local hospital for treatment.
4. That the accused with a common object attacked the complainant and injured him using sharp cutting weapons and thereby they have committed an offence punishable under section 147/148/326 and 34 of the Penal Code, which is triable in this Honorable Court.
5. That the complainant being law-abiding person filed complaint against the accused.

Wherefore, it is humbly prayed that your honour would

graciously be pleased enough to take “Cognigance under”

Section 147/148/326 and 34 of the Penal Code against

accused and issue non-bailable warrant of arrest

against Them.

And

For this Act of your kindness the complainant as induty

Bond shall ever pray.

Sugnature: Abdul Rahman

Verification.

I do hereby verify that the complaint petition was drafted in

My Chamber and the complaint has put, his signets at his

Own accord knowing full contents of it.

Md. Asaduzzaman

Advocate

15/1/2008.

v Presenting the complaint petition after the complainant has to be taken to the court by the magistrate and he has to be examining under section 200 of the Criminal Procedure Code.
v Law-Rules and Regulation-Produce- justice- to give every body due.

How to draft an application for bail to be submitted be-fore the Court of Magistrate?

In the Court of Judicial Magistrate, First Class Dhaka.

C.R. Case No 15 of 2008.
Abdul Rahman…………………………….Complaintant.
VS.
Ismile and others………………………..Accused.

In the matter of an application under section 497 of the
Cr.P.C for bail.
And
In the matter of:-
(i) Ismile.
(ii) Sujon.
(iii) Matin. All sons of Abdul Motaleb of village sonatangar, P.S Hazaribag, District Dhaka ……………………Accused.

The humble petition of the petitioners above named beg most respectfully-
SHEWETH:-
(1) That the petitioners are innocent and their harmed have falsely been implicated in the case out of previous grudge and enmity.
(2) That the petitioners are respectable people of the locality and they have honourable means of their livelihood.
(3) That the petitioners have their own houses and they have been living there with their respective families.
(4) That the petitioners will never measure the privilege of bail and they will never be absconding.
(5) That the petitioners are ready and willing to furnish adequate bond and security if they are allowed to go on bail.
(6) That other ground will be submitted verbally at the time of gearing of this application.
Wherefore, it is humbly prayed that your honour would
graciously be pleased enough to grant the petitioners bail in
the above noted case.
And
For this act of you kindness, the petitioners are in duty
bound, shall every pray.
Sd. Abdul Razzaque.

AFFIDAVIT

I Abdul Razzaque c/o Shahin Alom of village Sonatangar P.S. Hazaribag, District Dhaka aged about 42 years a Muslim by fait a cultivator by profession a citizen of Bangladesh by birth do hovels solemnly affirm and declare as follows:-
(1) That I am the full brother of the petitioners and I am fully aware of the case and therefore competent to swear this affidavit.
(2) That the statements made in paragraphs 1 to 6 are true to the best of my knowledge and belief.
(3) That I severe and sign this affidavit at my own accord downing full contents of it.
Sd. Abdul Razzaque
Deponent
I certify that the deponent is personally known to me
and he has put his signature in my presence.

District: Comilla
IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION
(Criminal jurisdiction)
Criminal Miscellaneous case no 15 of 2008
IN THE MATTER OF: An application under section 497 of
Cr.P.C for bail in C.R. case no 20 of 2008, now pending
before the court of chief judicial magistrate, Comilla for
trial.
AND
IN THE MATTER OF: An application against the order of
rejection passed by the learned Sessions Judge Camilla on
15/30/2008 is criminal miscellaneous case no 20 of 2008.
AND
IN THE MATTER OF:
(iv) Ismile.
(v) Sujon.
(vi) Matin. All sons of Abdul Motaleb of village sonatangar, P.S Hazaribag, District Dhaka ……………………Accused petitioner.
(NOW IN JAIL).

VERSUS
THE STATE……..complaint opposite party.
To
Mr. Justice Md. Ruhol Amin honourable chief justice of Bangladesh and his companion justices of the said Honourable Court. The humble petition of the petitioners above named beg most respectfully-

SHEWETH:
1. That the complainant ledged a C.R. case against the accused petitioner alleging inter alia. The petitioners demanded an amount of money to the complainant and the complainant refused to pay money and the petitioners had beaten him up causing grivious injury. (Certified copy of the complaint petition is annexed herewith and marked as ANNEXURE “A”).
2. That the accused petitioner voluntarily surrendered before the court of learned chief judicial magistrate and prayed for bail. But learned magistrate without appreciating the materials as record rejected the prays for bail. (Certified copy of order sheet dated 15/12/2007 is annexed herewith and marked as ANNEXURE “B”).
3. That the petitioners thereafter moved before the court of learned Session Judge and filed an application for bail. But the learned session judge without applying his legal mind in the prevailing circumstances rejected the prays for bail. (Certified copy order sheet of criminal miscellaneous case no 20 of 2008 is annexed herewith and marked as ANNEXURE “C”).
4. That being aggrieved by and dis-satisfied with the impugned order passed by the learned session judge the petitioners move before lordship and tile the application with a prayer for bail on the following amongst other.
GROUNDS
(I) For that the petitioners are innocent and they did not commit any offence whatsoever.
(II) For that the petitioners are law abiding citizen of the locality and they have never been involved in any criminal activities.
(III) For that the petitioners have their honourable means of income and they are living with their respective families is their own homes.
(IV) For that the petitioners are willing and ready to furnish adequate bond and security, if they are allowed to go on bail.
(V) For that the petitioners will never abscond and they will never misuse the trust of the bail.
(VI) For that the petitioners will never hamper with the evidence of the case.
(VII) For the petitioners are only earning members in their respective families and the members are the families will be is starvation in their absence.
(VIII) For that other grounds will be submitted verbally at the time of hearing of this application.
Wherefore, it is most humbly prayed that your lordship
would graciously be pleased enough to issue Rule NISI
calling upon the opposite party to show cause as to why
the petitioners should be enlarge on bail as prayed and
after hearing the parties make the rule absolute and
allow the petitioners to go on bail.
AND
Pending disposed of the rule the petitioners may kindly
be enlarged an ad-interim bail.
AND
For this act of your kindness, the petitioners as in duty
bond shall ever pray.
Sd. Deponent.
Certificate.
Advocate
AFFIDAVIT

In the court of session, Dhaka.

Criminal Misillernious Case No 15 of 2008.
In the matter of:-
An application under section 497 of the code of Criminal
Procedure for bail in C.R Case No 15 of 2008 now pending
before the court of Judicial Magistrate Saver Dhaka.
And
In the matter of :-
(vii) Ismile.
(viii) Sujon.
(ix) Matin. All sons of Abdul Motaleb of village sonatangar, P.S Hazaribag, District Dhaka ……………………Accused petitioners.
VERSUS
(1) Abdul Rahman……complainant opposite party.
The himble petition of the accused petitioners above named beg most respectfully.
SHEWETH:-
(1) That the complainant lodged a complaint alleging, inter ail, that the accused demanded an amount of money and the complainant refused to pay the same and the accused beaten him up causing gricvous injuries. (Certified copy of complaint petition is annexed herewith and marked as ANNEXURE “A”).
(2) That the accused petitioners voluntarily surrendered before the Court of Judicial Magistrate, Saver, Dhaka on 15/12/2007, and prayed for bail. But the learned court of Magistrate was pleased to reject the application and remanded the accused to jail custody. (Certified copy of order sheet dated 15/12/2007 is annexed herewith and marked as ANNEXURE “B”).
(3) That thereafter the accused petitioners move before your honour and pray for bail on the following amongst others-
GROUNDS

(I) For that the accused are innocent and they did not commit any offence whatsoever.
(II) For that the accused are law abiding Citizen of the locality and they have honourable means of livelihood.
(III) For that the accused have their own home where they have been living with their respective families.
(IV) For that the accused will never abscond or misuse the privilege of bail.
(V) For that the accused are ready and willing to furnish adequate bond and security if they are enlarged on bail.
(VI) For that the accused will appear before the court regularly when they are directed to do it.
(VII) For that other grounds will be submitted verbally at the time of hearing of this application.
Wherefore, it is humbly prayed that your honour would
graciously be pleased enough to admit this petition, call
for the record from the court of Judicial Magistrate,
notify the opposite parties and after hearing the parties
allow the petitioners to go on bail.
And
Pending hearing of this application the accused
petitioners may kindly be granted an ad-interim bail.
And
For this act of your kindness, your humble petitioners
are as in duty bound, shall ever pray.
Sd-
Deponent

AFFIDAVIT
I Abdul Razzaque c/o Shahin Alom of village Sonatangar P.S. Hazaribag, District Dhaka aged about 42 years a Muslim by fait a cultivator by profession a citizen of Bangladesh by birth do havelsy solemuly affirm and declare as follows:-
(4) That I am the full brother of the petitioners and I am fully aware of the case and therefore competent to swear this affidavit.
(5) That the statement made in paragraphs 1 to 3 and the grounds stated therein, are true to the best of my knowledge and belief.
(6) That I sivear and sign this affidavit at my own accord dnowing full contents of it.
Sd. Abdul Razzaque
Deponent
I certify that the deponent is personally known to me
and he has put his signature in my presence.

THE SUPRIME COURT OF BANGLADESH HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO 15 OF 2008

IN THE MATTER OF: An application under article 102 of the
constitutuion of the Peoples Republic of Bangladesh.
AND
IN THE MATTER OF:
1. Md Rashid Uddin S/O Mr. Mofiz Uddin. An associate protessor of medicin, Mitfort Hospital, Dhaka………………………..Petitioner.
VERSUS
1. The secretory, ministry of Heal Government, of Bangladesh.
2. Director General of Health, Directorate of Health, Government of Bangladesh………opposite parties.
AND
IN THE MATTER OF : To issue a direction to the opposite
Parties to execute the public service commission taken in
their meeting held on 15/12/2007, communicated to the
respondent party NO.1 vidememo, NO.205(2) dated 11/01/08.

To
Mr. Justice Md. Ruhul Amin Honourable chief Justice of Bangladesh and his companion Justices of the said Honrable Court.
The himble petition of the above named petitioner begs most respectfully-

SHEWTH:-
1. That the petitioner passed M.B.B.S degree in year 1975 and after grualitying civil service Examination of 1978 joined as Medical officer on 15/10/1977 in the Sylhet Medical Collage and Hospital. (The copy of joining litter dated 10/10/1977 bearing memo no 150(3) is annexed “A”)
2. That the petitioner had been working as medical officer with all reputation for last 20 years and there is no adverse comment in his annual confidential report. The petitioner was duly promoted as Associate Professor of medicine on 15/10/2003. (The copy of notfication of promotion on 10/10/2003 is annexed herewith and marked as ANNEXURE”B”).
3. That the concerned rule for promotion to the post of professor reguires 20 years of length of service including two years as an Associate Professor of medicine (A photo copy of concerned rule is annexed herewith and marked as ANNEXURE “C”).
4. That a notification of the public service commission was advertised showing a situation of professor of medicine was vacant. (Press cutting of the advertisement is annexed herewith and marked as ANNEXURE “D”).
5. That the petitioner accordingly applied for the post of Professor as he acquired all required qualification for promotion as professor from amongst the associate professor. (A photo copy of the application is annexed herewith ANNEXURE “E”).
6. That public service commission interviewed all eligible candidates including the petitioners and forwarded a recommendation to the Ministry of Health where the name of the petitioner was in the top of the list. (A copy of the recommendation of Public Service Commission is annexed herewith as ANNEXURE “F”).
7. That thereafter the officer of respondent No.1 after some time prepared a panel and issued a notification on 15/12/2007 promoting a person as professor medicine superseding the petitioner. (Photo copy of notification dated 15/12/2007 bearing memo no 25(3) is annexed herewith as ANNEXURE “G”).
8. That the petitioner issued a notice to both the respondents demanding justice and they did not respond to the notice within stipulated time. (A copy of justice Demand notice is annexed herewith as ANNEXURE “G”).
9. That there being no other efficacious speedy remedy. The petitioner buys to file this application under Article 102 of the constitution of the People Republic of Bangladesh on the following amongst other.
GROUNDS
(i) For that petitioner has acquired all qualification to the promoted to the post of professor.
(ii) For that public service commission has recommended the name of the petitioner.
(iii) For that the petitioner had been working with all reputation and there is no adverse remark in his ACR.
(iv) For that the petitioner was deprived of his legal rights.
(v) For that the career of the petitioner has become bleak.
(vi) For that the petitioner was not treated in accordance with law.
(vii) For that other grounds will be submitted verbally at the time of hearing of this application.
10. That in the aforesaid premises the petitioner prays the following.
RELIEFS
(a) To issue a rule nisi calling upon the respondents to show cause as to why the impugned notification should that be cancelled.
(b) To stay operation of the impugned notification.
(c) To make the rule absolute after hearing of the parties.
(d) To award all cost of the petition.
(e) To grant any other relief which your lordship consider just and proper.

AND
For this act of your kindness your humble petitioner as in duty bound, shall ever pray.

WRIT

2012-05-03T03:08:00.001-07:00

Under Article 102 of the Constitution of Bangladesh this is a special original jurisdiction of the High Court Division of the Supreme Court.

(1) Writ of Habeas Corpus.

(2) Writ of Mandamus.

(3) Writ of Prohibition.

(4) Writ of Certiorari.

(5) Writ of Quo Warranto.

Writ of Certiorari: certiorari is extended to prevent public functionaries from exceeding there power. Certiorari is used when the act or proceeding has been completed.

Writ of Prohibition: Writ of prohibition is also extended to prevent public functionaries from exceeding there powers, when the act or proceeding is not completed.

Writ of Mandamus: Writ of Mandamus is used to compel a public functionary to do what he is under a legal duty to do when he is refusing to do it.

Writ of Habeas Corpus: Writ of Habeas Corpus is extended to ensure that no person is detained or confine illegally or in an un law manner.

Writ of Quo Warranto: Writ of Quo Warranto is directed to ensure that no one occupies a public officer without any public authority.

Those powers are popular known as powers of judicial review of the High Court Division of the Supreme Court.

Constitutional body: The constitution of Bangladesh has outlined the composition of the body. {Public Service commission (PSC)}.

Statutory body: Composition of such body has been outlined by a piece of legislation. {Judicial Service Commission (JSC)}.

Direction of a writ of habeas corpus, to have the body before the court.

Section 491:

Scope of an application section 491 producing under section 491. Court of Criminal Procedure is certainly a criminals proceeding section 491 Cr.P.C is remedial form but postulates the existence of a right, the right toke personal freedom. This right along with other fundamental right is now guaranteed by the constitution (Article 102). The greatest impotence of the writ of habeas corpus is that it confers upon a person even when he is in public custody. The right to have tested and determined in the High Court Division the legality of the order or warrant by which he is Capt. is custody. The object is to safeguard the liberty of the subject against an abuse of power and to enable to the court to enquiry in to and determined the legality of the detention of the person, who is restrain of his liberty. The under line principle of every such writ is to ensure the protection and well being of the person brought before the court. Section 491 Cr.P.C is widely worded and entitled the High Court Division to enquiry whether the application was legally or improperly detain in public or private custody. And application for habeas corpus may be presented by the person detained or by any friend or relation.

Lecturer_ Harun-ur-Rashid Sir

Evidance Act

2012-05-03T02:55:00.002-07:00

EVIDANCE ACT-1872

X’s statement relating to the identity of the accused may be relevant under section 32(1) of the Evidence Act 1872. In order to be relevant under the said section it is necessary that the person must be dead or can not be found or incapable of giving evidence or whose attendance can not be procured without unreasonable delay or expense.

In the instant case, it can be seen that ‘X’ in now dead, so the condition precedent under section 32 is fulfilled.

Now the question comes, that at the time of making the statement X was not under apprehension death in such circumstances can his statement be relevant?

That answer can be found from clause 1 of the section 32, which has clearly stated that it is immaterial whether the person making the statement was not under the appearhension of death at the time of making the statement. However, the injury about the causation of which the statement has been made, must be the cause of death.

It appears from the fact that X ultimately died due to the injury caused to him. Therefore it can be concluded that ‘X’s statement about the identification of his assailants would be relevant under section 32(1) of the Evidence Act 1872.

v There are two kinds of facts which need not be proved:

(i) Facts about which the court shall take judicial notice; and

(ii) Facts which are admitted.

1. Facts about which the court shall take judicial notice:

Section 57 has given a list of the facts of which the court shall take judicial notice. But it has not defined what is meant by judicial notice. On judicial notice is meant taking notice of any fact which is so well known, or so widely circulated that it would be unnecessary to ask a party to the suit or proceeding about its existence. It may be stated that the list given under section 57 is not complete. There is other events judicial notice. Such as the sun rises in the east. A year consists of 365 lays e.t.c.

According to the section 56 of the evidence act, those facts need be proved.

2. Admitted facts:

Section 58 of the Evidence Act says that facts admitted by the parties by

(a) Agreement

(b) By rule of pleading need not be proved.

…………………………………………… Civil Court order 8 rules iii or v.

PRIMARY AND SECONDARY EVIDENCE

Primary evidence 62: This section defines the meaning of primary evidence which means the document itself produced for the inspection of the court. Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart is primary evidence, as against the party executing it. A document is executed in counterpart when there are two parties to the transaction.

Primary evidence is the evidence which the law requires to be given first.

Secondary evidence 63: This section describes what constitues secondary evidence. Secondary evidence is the evidence which may be given under certain circumstances in the absence of that better evidence which the law requires to be given.

Secondary evidence means and includes-

(i) Certified copies; ( Section 76 defines the expression certified copies).

(ii) Copies made from the original by mechanical process, and copies compared with such copies;

(iii) Copies made from or compared with the original;

(iv) Counterpart of document as against the parties who did not execute them;

(v) Oral accounts of the contents of a document by a person who has seen it.

Proof of documents by promary evidence 64: Document mist be proved by primary evidence except in the cases hereinafter mentioned. A written document can be only proved by the instrument itself. Without objection the evidence may be given, leading case (I) 20 DLR (SC) 205. (II) 44 DLR (AD) 162.

Opposite decision case: (i) 14 DLR (HS) 392. (II) 9DLR (AD) 115. (III) 47DLR (AD) 45.

Case in which secondary evidence relating to documens may be given 65: Secondary evidence may be given of the existence, condition or contents of a document in the following cases-

(a) Original in possessition of opposite party;

(b) Documents admitted by opposite party;

(d) Original documents not easily movable;

(e) When the original is a Public document within the meaning of section 74;

(f) Certified copies permitted by law;

(g) Document which cannot be conveniently examined.

Rule as to notice to produce 66.

Proof of signature and handwriting of person alleged to have signed or written document produced 67: A person relies upon a document is bound to proof is execution, the fact that it is registred makes no difference. Leading case: Abani Mohan vs. Assistant Custodian.

Proof of execution of document required by law to be attested 68.

Proof where no attesting withness found 69.

Admission of execution by party to attested document 70.

Proof when attesting witness denies the execution71.

Proof of document not required by law to be attested 72.

Comparison of signature, writing or seal with others admitted or proved 73.

Public document 74: Public document means any country or state document. For example Election commission document, court document, legislatiion document etc.

Private document 75.

Certified copies of public documents76.

Proof of documents by production of certified copies 77.

Proof of other official documents 78.

Presumption as to documents

Presumption as to genuineness of certified copies 79: certified are given to be original if it is made proper way.

Presumption asto documents produced as record of evidence 80.

Presumption as to Gazettes, newspaper, private Acts of Paliament and other documents 81.

Presumption as to document admissible in England without proof of seal or signature 82.

Presumption as to maps or plans made by authority of Government 83.

Presumption as to collection of laws and reports of decissions 84.

Presumption as to power –of-attorney 85.

Presumption as to certified copies of forign judicial records 86.

Presumption as to books, maps and charts 87.

Presumption as to telegraphic messages 88.

Presumption as to due execution, of documents not produced 89.

Presumption as to documents thirty years old 90.

Of the execution of oral by documentary evidence

(Section 91 and 92 are both called Parol evidence rule).

Evidence of terms of contracts, grants and other dispositions of property reduced to form of document 91: Exclusiveness of document.

Evidence of evidence of oral agreement 92: Any terms of contract, grant or other dispossition of properties and any matter required by law to be reduceed in writing- any parties or their repredentative on interest.

92(3) leading case Pym vs Cambell.

*** AMBIGUITY***

Ambiguity are of 2 kinds; (i) Patent ambiguity and, (ii) Latent ambiguity.

(a) Patent: Patent abbiguity are those ambiguity which can be discover from a plain reading of the document. For example: if a document state that a sale to be 3 chata of land and hands over possession of the 5 chata of land- that document will be considered suffering from patent ambiguity. Because in such case it is not clear from the document itself, as to whether 3 chatas of land and 5 chatas was sold.

(b) Latent: Latent ambiguity are thise ambiguity which can be discover upon reading of a document, but become apprent when the statement are to be applied practically. For example: if A says I sale to be my land and 3 storied building over it which is situated at in Shajahanpur, and it is found that A thow has a building at Shajahanpur but that is 1 storied. On the other hand A has a 3 storied building situated at Shjahad pur this will be a case of latent ambiguity.

No ambiguity and patent ambiguity: No oral evidence can be given to explain.

Latent ambiguity: Oral evidence can be given to explain.

Execution of evidence to explain or amend ambiguous document 93.

Evidence of evidence against application of document to existing facts94.

Evidence as to document unmeaning in reference to existing facts 95.

Evidence as to application of language which can apply to one only of several person 96.

Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies 97.

Evidence as to meaning of illegible characters 98.

Who may give evidence of agreement varying terms of document 99.

Saving of provisions of Succession act relating to wills 100.

Parol evidence rule:

Parol evidence is oral evidence, as opposed to written evidence. Most agreements are enforceable under contract law even if only oral.

Parol is a rule that oral evidence cannot be used to contradict the terms of a written contract.

In the context of contracts, deeds, wills, or other writings, parol evidence refers to extraneous evidence such as an oral agreement (a parol contract), or even a written agreement, that is not included in the relevant written document.

"Parol evidence of an agreement consisting of mere oral promises made previously or concurrently with the execution of a written contract of sale of land is inadmissible to charge the vendee with the payment of more than the expressed consideration, when the amount to be paid plainly appears from the face of the instrument.

"The parol evidence rule applies to written contracts for the sale or exchange of reality or personalty, and to such provisions as those relating to price; time and mode of payment, and time and place of delivery.The parol evidence rule apply to written contracts to safeguard the terms of the contract. The parol evidence rule does not apply to written integrated contracts in some instances. For example, clerical or typographical errors found in the written agreement may be changed because the incorrect term does not represent the true agreement between the parties.

Section 91 and 92 of the Evidence act are containing parol evidence. According to section 91,

(1) When term of (a) contract (b) a grant (c) any disposition of property has been reduced to the from of a document; or

(2) Where any matter is required by law to be reduced to the from of a document, than (a) the document itself or (b) secondary evidence of its contents must be put in evidence.

This section 1st provision refers to transaction voluntarily reduced in writing. And the 2ed provision refers to those cases in which any matter is required by law to be reduced to the from of a document.e.g. Sale of immovable property of the value of 100 tk and upwards, mortgage for an amount exceeding 100 tk and trust or gift of immovable property.

There are 2 exception of this provision, which are

(i) When any public officer required by law to be appointed in writing and any officer has acted such as, the writing need not be proved;

(ii) Will admitted to probate in Bangladesh may be proved by the probate.

Section 92 operates only as between the parties to a deed or their representative in interest. This section supplementary to section 91 and is to some extent Implied in it. According to this section

(1) When term of (a) contract (b) a grant (c) any disposition of property has been reduced to the from of a document; or

(2) Where any matter is required by law to be reduced to the from of a document,

Have been proved by the production of the document or by giving secondary evidence of its contents, no evidence of any oral agreement or statement shall be admitted as between the parties to any such document or their representative in interest, for the purpose of (i) contradicting, (ii) varying (iii) adding, (iii) subtracting form its terms.

There are 6 exception of this section. Which are in the following:

(1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want for due execution, want of capacity in any contracting party, want or failure of consideration, or a mistake in fact or law;

(2) Any separate oral agreement as to any matter on which the document is silent and which is not inconsistent with its terms, may be proved;

(3) The existence of any separate oral agreement, constituting, a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved;

(4) The existence of any separate oral agreement, constituting, a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved except such contract of grant in required to be in writing or has been registered;

(5) Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved if they are not repugnant to or inconsistent with its express term;

(6) Any fact may be proved which shows in what manner the language of a document is related to existing facts.

In the last we can say that section 91 and 92 define the cases in which documents are exclusive evidence of transactions’ which they embody. They only apply when the document evidencing a contract appears to contain all the terms thereof.

The documentary evidence is of 2 kinds; which are:

Primary Evidence: facts and details that have been drawn from documents rather than from other, more recent, explanatory articles or books.

Section 62 defines the meaning of primary evidence which means the document itself produced for the inspection of the court. Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart is primary evidence, as against the party executing it. A document is executed in counterpart when there are two parties to the transaction.

Primary evidence is the evidence which the law requires to be given first.

Secondary Evidence: Information that has been drawn from other articles, magazines, or books rather than from the original documents, often located in archives. The usual distinction is that secondary evidence may be coloured by someone else's interpretation of the meaning of the primary sources.

Section 63 describes what constitutes secondary evidence. Secondary evidence is the evidence which may be given under certain circumstances in the absence of that better evidence which the law requires to be given.

Secondary evidence means and includes-

(vi) Certified copies; (Section 76 defines the expression certified copies).

(vii) Copies made from the original by mechanical process, and copies compared with such copies;

(viii) Copies made from or compared with the original;

(ix) Counterpart of document as against the parties who did not execute them;

(x) Oral accounts of the contents of a document by a person who has seen it.

Proof of documents by promary evidence 64: Document must be proved by primary evidence except in the cases hereinafter mentioned. A written document can be only proved by the instrument itself. Without objection the evidence may be given,

Case in which secondary evidence relating to documens may be given 65: Secondary evidence may be given of the existence, condition or contents of a document in the following cases-

(h) Original in possession of opposite party;

(i) Documents admitted by opposite party;

(j) Original documents lost or destroyed;

(k) Original documents not easily movable;

(l) When the original is a Public document within the meaning of section 74;

(m) Certified copies permitted by law;

(n) Document which cannot be conveniently examined.

Patent ambiguity and latent ambiguity of a document:

Ambiguity is of two kind; which are:

(1) Latent ambiguity

An ambiguity that is not apparent from the wording of a document but is caused by external circumstances. Latent ambiguity law uncertainty existing where language employed in an instrument is clear and appears to have but one meaning, yet outside evidence makes it capable of more than one meaning.

Definition: Latent ambiguity is that ambiguities which can be discover upon reading of a document, but become apparent when the statement is to be applied practically. For example: if A says I sale to be my land and 3 storied building over it which is situated at in Shajahanpur, and it is found that A has a building at Shajahanpur but that is 1 storied. On the other hand A has a 3 storied building situated at Shjahadpur this will be a case of latent ambiguity.

(2) Patent ambiguity

Law uncertainty existing where language employed in an instrument is capable of more than one meaning.

Definition, Patent ambiguities are those ambiguities which can be discover from a plain reading of the document. For example: if a document state that a sale to be 3 chata of land and hands over possession of the 5 chata of land- that document will be considered suffering from patent ambiguity. Because in such case it is not clear from the document itself, as to whether 3 chatas of land and 5 chatas was sold.

For discover whether the document as referred to under section 123 and section 124 of the Evidence Act 1872 can really be regarded privileged or it not should be determined by the court, at first we should to know some definition-

Public officer: Public officer means a person one who holds public office; an official or employee of the government. The term “public officer” means an officer with public as opposed to private, duties who receives communication made to him in official confidence of such a nature that disclosure in certain case would injure the public interests. (Internet)

Disclosure: Disclose means to release information to a person other than another agency. Disclosure means making records available, on request for examination and copying, or furnishing a copy of records. It means providing information directly or indirectly to a person through any means of communication. (Internet)

In law the word “disclosure” means the first disclosure of communications made in official confidence and does not apply to a disclosure in a court of law of what has already been disclosed outside it. (Monir)

Privilege: In general sense it is a positive or affirmative valuation. It means having a special advantage. (Internet)

Privilege communication: The court have in general power of require anybody within their (subpoena) to depose in courts in judicial proceeding. Yet there are certain classes of information and communication which a person in possession of them is entitled to withhold from disclosure. Such information is known as privileged communication. Section 121 to 131 deal with such communication. The principle of privileged communication is founded upon public policy and public interest. (Najrul Islam)

The Evidence Act three kinds of communication as privileged from-

(i) Matrimonial communication

(ii) Official communication

(iii) Professional communication.

Official communication: The provisions of the Act relating to official communication are contained in section 123 and 124 of the Evidence Act.

(a) Evidence as to affairs of state section 123

(b) Disclosure of communications made in official evidence section 124.

Section 123: This section involves two things:

(a) That the document is an unpublished official record relating to any affairs of state, and

(b) That the officer at the head of the department concerned may give or withhold the permission for giving the evidence derived there from.

This section sufficient to justify non-production of an official document marked confidential would not be in the public interest, for example where disclosure would be injurious to national defense or to good diplomatic relations or where the practice of keeping a class of documents secret is necessary for the proper functions of the public service.

The following are examples of unpublished records of state-

(i) Document exchanged between two states;

(ii) Document exchanged between the state and its own subject;

(iii) Document exchanged between head of department of another state;

(iv) Document exchanged between heads of department or between ministers.

It is for the court to decide whether a document falls within the category “unpublished official records relating to any affairs of state”. In doing so the court can have regard to all the circumstances, barring the inspection of the document itself. What are the affairs of state has got to be determined by a reference to the grounds on which privileged can be claimed in respect of a particular document. It is only such documents which relate to the affaires to the state the disclosure of which would be detriment to the public interest.

Section 124: A public officer cannot be compelled to disclose communications made to him in confidence if he considers that public interests would suffer by this disclosure. This section is designed to prevent the knowledge of official papers, that is to say papers in official custody, beyond that circle which would obtain knowledge of them in confidence whether the confidence was express or implied.

The object of this section is to prevent the disclosure of things not known outside that circle which is in confidence and the section has no application when once there has been disclosure to a member of the public to whom the contents of such papers have not been made known in confidence.

The sole judge as to whether disclosure will harm the public interest is the public officer concerned and it is not for the court to decide whether public interest would or would not suffe.

Case:

S.P Gupta vs. Union of India.

This case arose out of the matter of transfer of a High Court judge and the non-renewal of the term of an additional judge. The correspondence between the Law Minister and the chief Justice of India and that between the chief justice of the High Court and the state Government was required to be produced. It was held that though the “advice” was protected from judicial scrutiny by virtue of art. 74 of the constitution the material on the basis of which the advice was formulated awe not protected. The court also added that the common law protection known as the “Crown privilege” or “public interest immunity” does not apply in India and observed as follows. Meaning and scope of section 123 of Evidence Act 1872 cannot remain static. It must be interpreted keeping in view our new democratic society wedded to the basic values enshrined in the Constitution.

On the other case:

Government of Bangladesh represented by the Secretary Ministry of Law Justice and Parliamentary affairs vs. Md. Shamsul Huda and Other.

The High Court Division shall hold a preliminary enquiry and determined the validity of the objection raised by the Attorney General to the protection of the paper. The Deputy Attorney General submits that the High Court Division in the face of claim of privilege was bound to hold a preliminary enquiry, and the High Court Division ought to have considered sections 123 and 162 of the Evidence Act. On the other hand Mr. Amir-ul-Islam, submits that Article 48(3) does not bar the court calling upon the appellants to disclose to the court the materials. He also submits that the privilege to withhold evidence relevant for the dispensation of justice would cut deeply into the guarantee. The generalized of privilege must yield to the demonstrated specific need for evidence in a pending writ petition.

The Chief Justice hold enquiry into some question which are in the following-

• Whether the paper relates to an affair of the state under section 123;

• Whether the paper in question are relevant on the basis of which the Prime Minister advised the President;

• Whether the proper adjudication of the issues involved in the writ petition;

• Whether a privilege is sought on the ground of immunity under law.

So we can say that, the document as referred to under section 123 and section 124 of the Evidence Act 1872 can be regarded privileged but it should be determined by the court whether that privilege is for the public interest or not.

Burden of proof section (101-112)

Question: Burden of proof of a case never shifts, thought onus of proof might shift discuss?

Answer: In Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994), the Supreme Court explained that burden of proof is ambiguous because it has historically referred to two distinct burdens: the burden of persuasion, and the burden of production.

There are generally three broad types of burdens:

* A "legal burden" or a "burden of persuasion" is an obligation that remains on a single party for the duration of the claim.

* An "evidentiary burden" or "burden of leading evidence" is an obligation that shifts between parties over the course of the hearing or trial.

* A "tactical burden" is an obligation similar to an evidentiary burden.

Burdens are of 2 kinds-

(a) Burden of proving a case ( Burden of proof); ( Section 102)

(b) Burden of proving a particular fact (Onus of proof), (Section 103 and 105-111).

Burden of proof: The duty of a party in a legal proceeding to prove an assertion of fact; it includes both the burden of production and the burden of persuasion.

Basically, "burden of proof" means the prosecution must present evidence at the trial that proves beyond any doubt the accused person committed the crime(s) for which they have been charged. The burden of proof cannot be shifted to the denial under any pretext.

Onus of proof:

The onus of proof is usually on the appellant. For example, an appeal is against the refusal of a claim to relief, and the onus is on the appellant to prove that he is entitled to the relief, rather than for HMRC to prove that he is not.

It is therefore very important to pay attention to the way that the evidential burden shifts as the hearing progresses.

Burden of proof never shifts but onus of proof might shift: There is an essential distinction between “burden of proof” and “onus of proof”. Burden of proof lies on the person who has to prove a fact and it never shifts ( For example, A sues B for land of which B is in possession and which as A asserts was left to A by will of C B’s father. If no evidence were given of either side, B would be entitled to retain his possession. There for the burden of proof in on A).

But the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence (For example A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A must prove the admission. B wishes the court to believe that, at the time in question he was elsewhere. He must prove it).

If the evidence is found to be acceptable, the onus shifts to the tortfeasor to prove circumstances, if any which disprove the assertions of the claimant. The expression “burden of proof” has two distinct meanings-

(i) The legal burden i.e. burden of establishing the gift, and

(ii) The evidential burden, i.e., the burden of leading evidence.

In a criminal trial the burden of proving everything essential to establish the charge against the accused lies upon the prosecution and that burden never shifts. The burden of proving a particular fact-in issue may be laid by law on the accused. The burden of evidence may shift constantly as evidence is introduced by one side or the other.

In the end we can say that “Plaintiff in order to succeed must prove his own case, and the weakness of the defendant’s case is no ground to pass a decree. He must prove the evidence in clear term. (39 DLR (AD) 237).

STANDARD OF PROOF

CIVIL: One the balance of probabilities -50%+50%.

CRIMINAL: Beyond- 90%+reassemble- 10 doubt.

Section (107-108): If any question arise the death of any person. And any person said that person can be seen within a time 30 years, it may be give the presumption. This must prove by the other party that person is not seen within period of 7 years if he proved this. If this proof that the person is died.

Cross-examination:

In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination. In a legal trial, the questioning of a witness by the attorney for the party opposed to the party that called the witness to testify; by extension, any process in which a person is subject to questioning. The questioning of a witness in a trial, or in the taking of a deposition, by the party opposed to the one who produced the witness.

So we can say that, the cross examination is the opportunity for the attorney for one party to ask questions in court of a witness who has testified in a trial on behalf of the opposing party.

According to section 138 of the Evidence Act (1882),

"The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Section 146 (which extend the power of cross-examination far beyond the limits of section 138 paragraph 2) contained that'

“When a witness is cross-examined, he may in addition too the questions hereinbefore referred to, be asked any questions which tend-

(1) To test his veracity;

(2) To discover who he is and what is his position in life; or

(3) To shake his redit, by injuring his character although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

It is important to remember that the evidence of a victim of crime is only part of the whole case against the accused. It is not up to you to prove the crime.

Cross-examination is a process of questioning an adverse party or witness. Cross-examination questions should be limited to those which reveal information necessary to support statements made in the closing argument. Cross- examination usually consists of narrow, leading questions calling for "yes" or "not" or specific answer. There are exceptions to this generalization which are most likely to occur during supportive cross-examination.

Cross-examination serves two primary purposes:

(a) Destructive cross;

(b) Supportive cross.

The following areas should be considered when weighing the credibility of the testimony:

(1) Is the testimony consistent with common sense?

(2) Is the testimony consistent within itself?

(3) Is the testimony consistent with other testimony presented in the case?

(4) Is the testimony consistent with the established facts of the case?

Irving younger’s ten commandments for cross-examination are worth remembering:

(I) Be brief;

(2) Ask short questions and use plain words;

(3) Never ask anything but a leading question;

(4) Ask only questions to which you already know teh answers;

(5) Listen to the answer;

(6) Do not quarrel with the witness;

(7) Do not permit a witness on cross-examination to simply repeat what the witness said on direct examination;

(8) Never permit the witness to explain anything;

(9) Avoid one question too many;

(10) Save it for summation.

These suggestions will not be applicable to all cases and all situations. The cross-examiner who has a legitimate reason for asking a question- whether or not that reason "violates" one of the ten commandments- will conduct an effective cross-examination.

Definition of Estoppel:

Estoppel is a legal term of art for "stopping" certain outcomes requested by a party to a lawsuit. When a person by his act or omission or declaration represents something to anther person and that other person relies upon such act omission or declaration and acts to his detriments than the person who has represented can not deny the truth of his representation.

Estoppel means a legal restraint that stops or prevents a person from contradicting or reneging on his previous position or previous assertions or commitments.

The invoke of the doctrine of estoppels three conditions must be satisfied:

(i) Representation by a person to another;

(ii) The other shall have acted upon the representation;

(iii) Such representation shall have been determined to the interest of the person to whom the representation has been made.

Kinds of Estoppels: Estoppels are of 3 kinds. Which are-

(i) Estoppels by record (section 40 res-judicate);

(ii) Estoppels by document (section 91-92);

(iii) Estoppels by pais conduct promise (section 115).

Estoppels by pais conduct promise (section 115): Doctrine of pais arises (a) from agreement or contract; (b) from act or conduct of misrepresentation. Estoppels by pais conduct promise are of 2 kinds which are-

(a) promissory estoppels;

(b) Proprietary estoppels.

Promissory estoppels: when a person promises to another that he would not enforce his legal right against the other and the other person relies on such promise and if he affaires that the person promising appears if goes back form his promise than it would be inequitable in such a case the person promising would not be allowed to go back from his promise without giving the other party and notice to that effect.

Promissory Estoppels is the doctrine that prevents a party from acting in a certain way because the first party promised not to, and the second party relied on that promise and acted upon it.

The doctrine of promissory estoppels was first developed in Hughes v. Metropolitan Railway Co [1877] but was lost for some time until it was resurrected by Lord Denning in the controversial case of Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130.

Promissory estoppels requires

1. An unequivocal promise by words or conduct

2. Evidence that there is a change in position of the promisee as a result of the promise (reliance but not necessarily to their detriment)

3. Inequity if the promisor were to go back on the promise.

Proprietary estoppels: When a person by his act or declaration represent to the other that other person shall have a right to posses certain property belonging to eh person promising then the person promising shall be stopped from evicting that person.

The traditional version of proprietary estoppels arises in relation to rights to use the land of the owner, and may even be effective in connection with disputed transfers of ownership.

In Wilmott v Barber (1880) 15 Ch D 96, Fry J considered that five elements had to be established before proprietary estoppel could operate:

* The plaintiff must have made a mistake as to his legal rights;

* The plaintiff must have done some act of reliance;

* The defendant, the possessor of a legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff;

* The defendant must know of the plaintiff's mistaken belief; and

* The defendant must have encouraged the plaintiff in his act of reliance.

Can estoppels only be used as a shield and not sword:

Waltons Stores (Interstate) Ltd v Maher (HPH 219)

This is the case where the High Court made a big breakthrough in relation to the doctrine of estoppel, particularly promissory estoppel. In Legione v Hateley promissory estoppel was given recognition in terms of the High Trees principle. This was, as we have said, a limited doctrine. It could only be used as a shield and not as a sword. Typically, High Trees promissory estoppel would be used when the person who made the promise or representation tried to insist on contractual performance and the other party said "But we assured me that I did not have to..." It was used as a defense.

The breakthrough in the Waltons case was two-fold:

(i) it allowed promissory estoppel to be used as a sword; and

(ii) It recognized promissory estoppel as a general principle which could operate in any circumstances of legal relations, not just existing contractual relations.

This is all cery well, but how can we be so sure that estoppel is restricted to the law of waiver rather than being as wide-ranging a basis for the enforcement of promises as general law of contract? in English law this point was decided in the case of Cambe vs. Cambe (1961) 2KB 215, in which the court of appeal including Denning again, now a lord justice held that the doctrine of promissory estoppel can only operate as a shield and cannot be used to create a cause of action. The doctrine of promissory estoppel (by analogy with waiver) can be used to prevent a promisor from enforcing his legal rights, but can not be used to relate now legal rights in the promisee. The fact that promissory estoppel is primarily a doctrine of waiver a shield and not a sword- makes the analogy with other forms of estoppel a little stronger.

On the other case Dewitt vs. Fleming, the fifth district appellate court of Illinois held that promissory estoppel was “not available as a cause of action (i.e. as a sword) in Illinois but was available only as a defense (i.e. as a shield).

A final important point is that it is as yet unclear whether promissory estoppel operates to permanently waive the promisor’s legal rights, or whether the effect is only temporary (the term usually used is suspensory).

Problems: T, professional terrorists has come to a lawyer. T told L that he was involved in a terrorist attack at Shahidbagh for which police is investigating. L has decided to defend T. while dealing with Ts case. L one day noticed that T is carrying certain papers in his hand. When asked what were those T told L that those were detail plans of a robbery which he was planning to commit next week with the help of his other assistants. Ls clerk C who is a pious man, having heard all these informed the police. He told to the police that T was in fact involved with the terrorist attack at Shahidbag. The prosecution produced L and his clerk as witnesses against T in the case where T was charged for committing terrorist attack at Shahidbag and also in the case where T was charged for conspiring to commit robbery. Advice the parties.

Answer: T, a professional terrorist has come to Lawyer after involved in a terrorist attack and lawyer decided to defend T. It may be relevant under section section 126 (1st paragraph) of the Evidence Act 1872. On the other hand T, carrying certain paper which detail plans of robbery and the lawyer noticed that. It also may be relevant under proviso 1 section126 of the evidence Act.

In the present case there are two instant, in the 1st instant, the lawyer is not permitted to disclose the involved of terrorist attack of T, at Shahidbagh, without hi express consent, under section 126 1st paragraph of the Evidence Act. Because this section contain that, “An advocates is not permitted, without the express consent of his client to disclose any thing any communication made to his in the course and for the purpose of his employment.

Now the question comes can a clerk, permitted to disclose that communication made. He is also not in disclosing in this instant, because section 127 of the Evidence Act 1872 contain that “Section 126 will apply to Interpleader, Clerk or Servant of advocate”.

The 2ed instant is that the lawyer and his clerk is permitted to disclose the conspiring to commit robbery (under proviso 1 of the section 126), which T was charged. This proviso contained that, “nothing in this section shall protect from discloser, any such communication made any furtherance illegal purpose.

So according to this proviso the lawyer can permit to disclose the conspiring of robbery. And if lawyer can permit to disclose so the clerk can also permitted (under section 127).

On the other hand section 128 of the Evidence Act 128 is containing that, “The privilege not waived by giving voluntary evidence”. If we analyze this section we can say that, privilege is to belong to the client and the client can only alone waive it. The privilege is not lost b calling the adviser as a witness, unless the parties have the privilege question which relating to the confidential matter.

So lastly we can say that in this case the lawyer and his clerk disclose the fact of conspiring to commit robbery but are not permitted to disclose the terrorist attack.

Lecturer_ Barrister Tanvir Parves Sir

INTERPRETATION

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Defination:

(Interpretation) “Interpretation” means to give meaning to. According to D.D.Basu ‘interpretation means the ascertainment of the true meaning of that which is expressed by the words used’.

So interpretation is a process of mathord by which we can often the actual meaning of any law from the words used in that law.

(Construction) “construction” is a mathord or is a process by which we can often the true meaning any law not only from the words contained in that law but also taking outside help.

Construction is the drawing of conclusions respecting subjects that lia beyon the direct expression of the text.

Conclusion which are in the spirit though not within the tetter of the law. ( Refrance Bouvier Law Dictionary).

(i) Supreme law/ supreme legislation-----> Constitutional law.

(ii) Legislation-----> Act/ Ordinance.

(iii) Delegated legislation-----> Rule/ Regulation.

Bey – laws.

Which the authorities of law?

General rules; Applicable to all types of law special rules; Appcable to constitution law only in true interpretation means within; to give, indeed duty of the legislation ends where any law is enacted and it acquries the shape of statute. After the legislation, A statue comes in the had of the those to interpret laws who are concerned with that laws and apply the according. If there is any conflict as to the actual meaning of any law, that conflict is to be settled is to be solved by the court what the court specially the high court says is final and binding upon all authorities concerned untill changes it parliament charges it.

(i) Primary authorities.

(ii) Final authorities.

Rules of interpretation of law?

(a) Special rules: Applicable to constitutional law only.

(b) General rules: Applicable to all types of law. Types of general rules-

(i) Litteral rules of interpretation or grammatical interpretation.

(ii) Golden rule of interpretation or local interpretation.

(iii) Harmonies construction of the provision of law. ( Friest of those rules are applied when the meaning of the laguages of any law is plain and simple).

(iv) Mischief rules of interpretation.

Special rules:

Generaly there are 3 important special rules for interpretetion of constitution law. This are:

(1) The Doctrine Liberal Interpretation.

(2) The Doctirne of Generic Interpretation or the Doctrine of Progressive Interpretation.

(3) The Doctrine of Historical Interpretation.

Disscation:

(1) Literal rules: According to this rule, it is to be assumed that the words and phrases of technical law are used in their technical meaning if they have acquired one, and other rise in their ordinery meaning. ( ADR vs Comissioner of Income tax).

(2) Golden rules of Interpretation: This rule is also called lagical Interpretation. This rules is applied when to similar meanings are open. According to this rules, when two similar meanings are open, the court may adopt the more logical of the two. Lord Wensleydle for the first time called it the Golden rule and adopted it in Guay vs Pearson. According to Golden rule of Interpretation, when two similer meaning are found as result of interpretation in such chase the more logical meaning is to be accepted. According to this rule that is more logical which is less hurmfull and more useful. Fore example parliament passed law, giving power to the government to acquirs any land of property in public interest. Without any reference as to with compensation or without compansation. But the lander challenged the action of the govt in a court of law. And claimed compansation. But the government party argued that government is not bound to give compansation. Because of having no reference of compensation. But the court applied logical interpretation direction the government to pay compensation to the lander.

(3) Harmonious construction of the provision of law: It is a settle principle or interpretation of laws that the verious provisions of any law are to be interpreted Harmoniously state of Tamilnadu vs M.K. Kandaswami ( ALR 1975 SC 1871). Another general principle is that various provisions of ragarding particular subject any law must be considered alone. It is the duty of the court to go to the whole instrument if neceassary to ascertive the to often the true meaning any particuler provision. For example as per Article 95 of the bangladesh constitution the prosident shall appoint the judges of the suprime court in Article 95 there exists no reference of taking abvice of the priminister. But in Article 48 of the bangladesh constitution it is mention that president shall exercise all of his function except appointment priminister and chief Justice as per advice of the priminister. According to Harmonies Interpretation if we construc Article 95 are must consider the both that is article 95 and 48.

(4) Mischief rule of Interpretation: This ruel take its origin from Heydons case in 1584. This rule is applied when the words of law any law are not capable to produce any enact meaning. However this rule considers the following contents in construing an enactment:

(i) What was the common law before making the enactment;

(ii) What was the Mischief and defect for which previous law was repled;

(iii) What remedy the preliament has resolved;

(iv) Then the judges are to make such construction as shall suppress the Mischief; and advance the remedy according to the true intent of the meders of the enactment, pro bono publico.

The doctrine:

(1) Liberal Interpretation: No constitution enactment is to be interpreted in any narrow and padentic sense ( Jamps vs Common Wealth of Autralia).

(2) The doctrine of Generic Interpretation: All constitutional provisions should be Interpreted to meet and cover the changing conditions of Socio economic life ( Mc Culloch vs Maryland ). This doctrine is also called known as the doctrine of Progressive Interpretation.

(3) The doctrine of Historical Interpretation: This doctrine is opposite to Generic Interpretation. According to Historical Interpretation a constitution does not mean one thing at one time and another subsequently. It must be Interpreted as it was understood at the time of its adoption ( Dred Scott vs Sanford).

Lecturer_ Hasan Talukder Sir

Easement

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Easement normally means a right to use land not belonging to the person using it.

Section-26 of the Limitation Act, 1908 provides for acquisition of right to easement. The term ‘easement’ is defined in section 2 (5) of the Act which reads as follows:

“Easement includes a right not arising from contract, by which one person is entitled to remove the appropriate for his own profit and part of the soil belonging to another or anything growing in or attached to, or subsisting upon, the land of another.

Acquisition of the right of easement: Section 26 of the Limitation Act provides for the rules of acquisition of the right of easement. According to this section the right of easement regarding enjoyment of light, air, way, watercourse, use of water or other easement shall be absolute and indefeasible if it is enjoyed continuously for a period of 20 years in the case of enjoying private property or 60 years in the case of public property. But this use or enjoyment must fulfill some essential conditions.

i) In the case of access and use of light and air to or for any building the enjoyment must be--

a) peaceable

b) as an easement

c) as of rights

d) without interruption

e) for 20 years in the case of private property and 60 years in the case of public property

ii) In the case of right to way, watercourse, use of water or any other easement the enjoyment must be –

a) peaceable

b) open

c) by the person claiming title thereto

d) as of easement

e) as of right

f) without interruption

g) for 20 years in the case of public property and 60 years in the case of private property.

But the right acquired by section 26(1) will be extinguished if there is any interruption for 2 years. So, if any such right is acquired and subsequently obstructed, the person acquired it must file a suit within 2 years claiming such a right.

Example: A is using a right of way on the land of B for 20 years peacefully and openly to enter into his house. B objected after 20 years here A’s right to the way will be upheld by the Court under section 26. This is an example of acquisition of the right of easement or acquisitive property.

Time of continuous enjoyment:

Under clause3 of section 26 the property over which the right of easement is claimed must be enjoyed--

i) 20 years in the case of private property

ii) 60 years where such property is a government property

It has been provided in article 37 of the Limitation act that the person claiming the right of easement will have to file the suit within 3 years of his being obstructed from using the right.

Conditions of easement:

The following conditions must be satisfied for the acquisition of right to easements:

i) Peaceably:

The term peaceably signifies that the enjoyment must not be by violence or force stealth.

ii) Openly

Openly means that the enjoyment must be open and not by stealth or surreptitiously or in disguise.

iii) As of right:

It means that, the enjoyment must be without any leave or licence of the servient owner or without any consideration or payment howsoever nominal it is. As of right means an adverse exercise of the right against the servient owner.

iv) Without interruption:

Without interruption means without any obstruction on the part of the person against when the easement is claimed. It is not necessary that the enjoyment must be for every moment. What is necessary that the right have continuously and substantially used or enjoyed whenever occasion required. Here non user does not constitute interruption.

In the case of Sudheendee dev vs. Ambica Singh Monipuri, 25 DLR, it was held that mere use of a pathway cannot create prescriptive right unless it is shown that such user has been as of right, peaceably and without interruption.

Lecturer _ Mosume Madam.

DECLARATORY DECREES

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Definition:

If any person entitled to any legal character, or to any rights as to any property is denied by another and if any suit is field by the person so denied is called a declaratory suit. This suit is filed if any legal character of any person pr any legal rights of any property is denied or is interested to be denied by any other person. Simple declaratory suit requires fixed court fee; which is fixed at Tk- 200.

Illustration: X owns a land by inheritance of plot no. 501 in C.S Khatian. Afterwards, in the R.S Khatian it was wrongfully recorded in the name of Y under plot no.401. Y forcefully attempted to take possession of the land on the basis of the wrongful record. X may obtain a declaration of his right to whole the property.

Discretion of court as to declaration of status or right: According to section 42 of the S.R Act any person entitled to any legal character, or to any rights as to any property may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, the plaintiff need not in such suit ask for any further relief.

Bar to such declaration- Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Illustration: A is in possession of certain property. B alleging that he is the owner of the property requires A to deliver it to him. A may obtain a declaration of his right to whole the property.

Applicability of Article 120- declaration as to right to property under section 42 of the Specific Relief Act.

Article 120 of the Limitation Act which prescribes six years limitation.

Case: Mono Mohini Devi vs. Sirajud Ahmed Bhuiya, 21 DLR

Case Law-Not only a person entitled to any legal character but also any person entitled to any right as to any property can institute a suit for decoration.

Case: Jinnat Mukhtean Vs. Abdul Majid, 27 DLR.

Essentials of the relief/ Requisite for a declaratory action: In order to obtain relief under section 42, plaintiff must establish that –

1. The plaintiff is at the time of the suit entitle to any legal character or to any right as to any property.

Case: Ahmed Vs. Haji Khan, AIR.

2. The defendant has denied or is interested in denying to the character or title of the plaintiff. There must be some present danger or determent to his interest. So that a declaration is necessary to safeguard his right and clear the mist.

3. The denial must be communicated to the plaintiff in order to give him cause of action.

Case: Mahabir Vs. Sarju, 43 IC.

4. The declaration asked for is a declaration that the plaintiff is entitled a

Legal character or to a right to property.

5. The plaintiff is not a possession to claim further relief than a bare

declaration of his title. A person who is able to seek for further relief,

Should not be allowed mere declaratory relief, if he omits to do so.

Case: Chinnammal Vs. Varadarajulu, 15 Mad.

When relief under section 42 would be refused: Though no hard or fast rules can be laid down as to the circumstances in which the court should exercise or refuse to exercise its discretionary jurisdiction under section 42, the following may be mentioned as the circumstances in which the court may refuse the relief;

a) The courts will not grand relief unless there is substantial injury.

Case: Chhakowri vs. Secy. of State, 5 pat.

b) No declaration will be made where the plaintiff claim as never been denied by the defendant.

Case: Pitchai Vs. Devaji, AIR.

Even a denial is not sufficient to justify a declaratory decree, where a mere denial is not likely to injure the plaintiff materially.

Case: Ahmad Vs. Haji, AIR.

c) A declaration can not be given to a plaintiff whose conduct is fraudulent.

Case: Narainbhai Vs. Narbada, AIR.

d) No declaration would be granted where it could be rendered nugatory by the defendant Narain Vs. Sashi, 37 All, as where it would be contrary to the provisions of a statute.

Case: Ali Khan Vs. Bhagwan, 1943.

e) No declaration should be made which will be in fructuous or useless.

Case: Biswanath Vs. Mytaba, AIR.

f) A declaration may be refused where some other remedy would be more effective, e.g. a proceedings for recovery of possession.

Case: Thakurji Vs. Kamta, AIR.

g) Non-joinder of necessary parties is a good ground for refusing to grant a declaration decree in the exercise of discretionary power, because the court will not make a decree which is ineffective.

Case: Maharaja of Benares Vs. Ramji, 27 All.

h) Great delay in bringing a suit may of itself be sufficient to refuse the declaratory relief of a declaration.

Case: Shiambehari Vs. Madan, AIR.

Effect of declaration: According to section 43-

A declaration made under this chapter is binding only on the parties to suit, persons claiming through them respectively, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.

Illustration: A, a Hindu, in a suit to which B, his alleged wife and her mother, are defendants, seeks a declaration that his marriage was duly solemnized and an order for the restitution of his conjugal rights. The court makes the declaration and order. C, claiming that B is his wife, then sues A for the recovery of B. The declaration made in the former suit is not binding upon C.

Abdul Kader Rani and others Vs. Kaiser Ahmed Howlader and others, 5 BLC.

Lecturer _ Mosume Madam.

Injunction

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TEMPORARY INJUNCTION

Every court is constituted for the purpose of administering justice between the parties and therefore, must be deemed to process all such powers as may be necessary to do full and complete justice to the parties before it.

It is a well stated principle of law that an interim relief can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his rights in a suit or any other proceeding therefore, a court undoubtedly processes the power to grant interim relief during the pendency of the suit.

Case: State of Orissa vs. Madan Gopal, AIR (1952)

An injunction is a judicial process whereby a party is required to do or to refrain from doing any particular act.

Temporary injunction is mode of granting preventive relief by the court at its discretion. A temporary injunction is also known as interim injunction.

Definition: According to order 39 of the CPC any order made temporarily prohibiting the defendant not to alienate, or to change or to damage the property in dispute during the pendency of the suit is called temporary injunction.

According to section 53 of the S. R. Act, temporary injunctions are such as are to continue until a specified time, or until the further order of the Court. They may be granted at any period of a suit and are regulated by the Code of Civil Procedure, 1908.

Thus temporary injunction is regulated under the provisions of rules 1-5, order 39 of the Code of Civil Procedure, 1908.

Object of temporary injunction

The purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated.

The underlying object of granting temporary injunction is to maintain and preserve status quo at the time of institution of the proceedings and to prevent any change in it until the final determination of the suit.

When and how a temporary injunction is granted

Grounds:

According to Order 39 Rules 1& 2 of the CPC –

Temporary injunction may be granted by the Court in the following cases—

a) where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or;

b) where the defendants threatens, or intends to remove or dispose of his property with a view to defrauding his creditors; or

c) where the defendants threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit; or

d) where the defendant is about to commit a breach of contract, or other injury of any kind; or

e) Where the court is of the opinion that the interest of justice so requires.

Principle:

The power to grant temporary injunction is in the discretion of the Court. This discretion however should be exercised reasonably, judiciously and on sound legal principles.

Before granting a temporary injunction, the court must consider the following principles:--

(i) When an application is made for it

(ii) When the court is satisfied about the following aspects; namely-

(a) prima facie case

(b) irreparable loss

(iii) After the notice has been given to the opposite (Rule 3, Order 39)

Prima facie case: At first the court must consider whether the plaintiff makes out of a prima facie case in support of his claim.

The existence of a prima facie case in favour of the plaintiff is necessary before a temporary injunction can be granted to him. ‘Good prima facie case’ has been explained to mean that a serious question is to be tried in the suit and in the event of success, if the injunction be not granted the plaintiff would suffer irreparable injury.

Case: Uttara Bank vs. Macneill & Kilburn Ltd. 33 DLR.

The burden is on the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favour of him.

Explaining the ambit and the scope of the connotation ‘prima facie’ case in Martin Burn Ltd. VS. Banerjee 1958.

A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed.

Irreparable injury: “Irreparable injury” means that the injury must be one that cannot be adequately compensated for in damages. The mere fact that if no injunctions was granted the party would be open to criminal prosecution does not mean that irreparable injury would be non issue of an injunction.

The existence of a prima facie case is not itself sufficient. The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury. PLD 1960 Dhaka, 153 (DB)

Balance of inconvenience: The court should issue an injunction where the balance of convenience is in favour of the plaintiff and not where the balance is in favour of the opposite party. The meaning of “balance of convenience” in favour of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiffs. The inconvenience caused to the plaintiff would be granted than that which would be caused to the defendants if an injunction is grated but the suit is ultimately dismissed. Although it is called “balance of convenience” it is really the “balance of inconvenience”, and it is for the plaintiffs to show that the inconvenience caused to them would be granted than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other wards the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.

In granting a temporary injunction the Court should consider,

Firstly- The plaintiff makes out a prima facie case;

Secondly- That the plaintiff will suffer irreparable loss if the injunction prayed for is not granted; and

Thirdly- The balance of convenience lies in favour of the plaintiff.

Case: MT. AymumNessa vs. md. Obaidul haque, 35 DLR

Temporary injunction should be refused in the absence of the above mentioned three principles.

PERPETUAL INJUNCTION

According to Section 53 of the S.R Act, a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is hereby perpetually enjoined from assertion of a right, or from the commission of an act which would be contrary to the rights of the plaintiff.

Perpetual Injunction when granted

According to Section 54 of the S.R. Act, subject to the other provisions contained in, or referred to by this chapter, a perpetual injunction may be granted to prevent the breach of obligation existing in favour of the applicant, whether expressly or by implication.

When such obligation arises from contract the court shall be guided by the rules and provisions contained in the chapter II of this Act.

i) Contracts which may specifically be enforced; and

ii) Contracts which can not specifically be enforced.

When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunctions in the following cases:-

a) Where the defendant is trustee of the property for the plaintiff.

Illustration:

A trustee threatens a breach of trust. His co-trustees if any should and the beneficial owner may sue for an injunction to prevent the breach.

b) where the exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

Illustration:

In the course of A’s employment as a vakil, certain papers belonging to his client, B come into his possession. A threatens to make this papers public, or to communicate there contents to a stranger. B may sue for an injunction to restrain A from so doing.

c) where the invasion is such that pecuniary compensation would not afford adequate relief;

Illustration:

A, is B’s medical advisor. He demands money for which B declines to pay. A then threatens to make known effect of B’s communications to him as a patient. This is contrary to A’s duty and B may sue for an injunction to restrain him from so doing.

d) where it is provable that pecuniary compensation can not be got for the invasion;

Illustration:

A, the owner of certain houses in Dhaka becomes insolvent. B buys them from the official assigned and enters into possession. A persists in trespassing on and damaging the houses and B is thereby compelled, at considerable expenses to employ men to protect the possession. B may sue for an injunction to restrain further acts of trespass.

e) Where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Illustration: A pollutes the air with smoke so as to interfere materially with the physically comfort of B and C, who carry on business in a neighboring house. B and C may sue for an injunction to restrain the pollution.

Explanation:

For the purpose of the section a trade mark is property.

Relevant case of this section-M/S. Hossain Ahmed vs M/S HD Hossain & Brothers, 32 DLR

In the absence of the above mentioned ground perpetual injunction will not be granted.

Mandatory Injunction:

According to section 55 of the S. R. Act--when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel the performance of the requisite act.

Illustration: A, by new buildings, obstructs lights to the access and use of which B has acquired a right under the Limitation act, 1908. B may obtained an injunction, not only to restrain A from going on with the buildings, but also to pull down so much of them as obstructs B’s light.

Case: Abdul Bakir vs. Sirajul Islam, 20 DLR

Lecturer _ Mosume Madam.

RECEIVER

2012-05-02T17:51:00.003-07:00

Definition:

The term ‘Receiver’ has not been defined in the Code of Civil Procedure and the Specific relief Act. According to Kerr, he is “an impartial person appointed by the court to collect and receive, pending the proceeding, the rents, issues and profit of land or personal estate, which it does not seem reasonable to the court that either party should collect or receive, or for enabling the same to be distributed among the persons entitled’.

In other words, he is an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendent lite when it does not seem reasonable to the court that either party should hold it.

Case: Thomas vs. Indian Bank, 1984, AIR

Appointment of receiver:

According to section-44 of the S R Act – the appointment of a receiver pending a suit is a matter resting in the discretion of the Court.

Reference to Code of Civil Procedure- The mode and effect of his appointment, and his rights, powers duties and liabilities, are regulated by the Code of Civil Procedure, 1908.

In a suit for a declaration and permanent injunction, a civil court is competent to appoint a receiver. But this power should not be used only in exceptional case. Section 44 declares that the appointment of a receiver pending a suit rests in the discretion of the court and makes a reference to the civil procedure court for the mode and effect of his appointment and for his rights, powers, duties and liabilities.

According to Order-40 Rules-1 to 2 of the CPC –

1. where it appears to the court to be just and convenient, the court may be ordered-

a) appoint a receiver of any property, whether before or after decree;

b) removing person from the possession or custody of the property;

c) commit the same to the possession, custody or management of the receiver; and

d) confer upon the receiver all such power as to bringing and depending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as such owner himself has, or such of those power as the court thinks fit.

2. Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

The receiver is appointed on the basis of the following principles:

i) the appointment of a receiver is a discretionary power of the court

ii) It is a protective relief the object is preservation of the property in dispute pending a judicial determination of the rights of the parties to it.

iii) A receiver should not be appointed unless the plaintiff prima facie proves that he has very excellent chance of succeeding in the suit.

iv) It is one of the harshest remedies which the law provides from the enforcement of the rights, and therefore should not be lightly restored to. Since it deprives the opposite party the possession of property before a final judgement is pronounced, it should only be granted for the prevention of manifest wrong or injury. A court will never appoint receiver merely on the ground that it will never do any harm.

v) Generally, an order appointing a receiver will not be made where it has the effect of depriving the defendant of a defector possession, since that might cause irreparable loss to him. But if the property shown to be in medio, that is to say in enjoyment of no one, it will be in the common interest of all the parties to appoint the receiver.

vi) The court should look at the conduct of the party who makes an application for appointment of a receiver. He must come with clean hands and should not have disentitle himself to this equitable relief by laches, delay or acquiescence.

Case: S.B Industries vs United bank of India AIR 1978.

Powers of receiver:

According to Order- 40 Rule-1(d) of the CPC –

A receiver is an officer or representative of the Court and his functions under its discretion. Reddy vs. Reddy, AIR 1957. The court may confer upon the receiver any of the following powers:

i) To institute an and defends suit

ii) To realize, manage, protect, preserve and improve the property;

iii) To collect, apply and dispose of the rents and profits;

iv) To execute documents; and

v) Such other powers as it thinks fit.

But he has no power except such as are conferred upon him by the order by which he was appointed. It is open to a court not to confer all of the above powers. They are conditions by the terms of his appointment. Case: S.B Industries vs United bank of India AIR 1978.

But even when full powers are conferred on him he should take the directions of the court in all important matters if he wants to protect himself. A receiver cannor sue or be sued without the leave of the court. Everest coal Co. vs. State of Bihar AIR 1977.

The status of the receiver has been appropriately explained in the leading case of Jagat Tarini Dasi vs. Naba Gopal Chaki ILR in the following words:

“The receiver is appointed for the benefit of all concerned; he is the representative of the court, and of all parties interested in the litigation, wherein he is appointed. He is the right arm of the court in exercising the jurisdiction invoked in such cases for administering the property; the court can only administer through a receiver. For this reason, all suits to collect or obtain possession of the property must be prosecuted by the receiver, and the proceeds received and control by him alone.”

Duties:

According to Order-40 Rule-3 of the CPC,

Every receiver so appointed shall—

a. furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property;

b. submit his accounts at such periods and in such form as the Court directs;

c. pay the amount due from him as the Court directs; and

d. Responsible for any loss occasioned to the property by his willful default or gross negligence.

A receiver has to furnish such security as the Court thinks fit duly to account for what he shall receive in respect of the property. He has to submit accounts at such period and in such forms as the Court directs. He has to pay the amount due from him as per the direction of the Court. B a representative of the Court is bound to discharge his duties personally and cannot delegate or assign any of his rights or duties entrusted to him by the Court.

Case: Balaji vs. Ram Chandra, 1895.

Liabilities:

According to Order-40 Rule-4 where a receiver—

a) fails to submit his accounts at such periods and in such as the Court directs, or

b) fails to pay the amount due from him as the Court directs, or

c) occasions loss to the property by his willful default or gross negligence the Court may direct his property to be attached and may sell such property and may apply the proceeds to make good any amount found to be due from him where any loss occasioned by him, and shall pay the balance (if any) to the receiver

A receiver is bound to exercise the same diligence in keeping down expenses and in carrying for the estate in his possession as a prudent man would observe in connection with his own property under similar circumstances. Mohini vs. Sarkar AIR 1941.thus he is not responsible for sums actually received by him but also for all sums which he might have received but for his default or negligence. Where he fails to pay the amount ordered by the Court, the Court would be justified in directing the attachment and sale of his property the court has also an inherent power to remove the receiver appointed by it, when he does not comply with the orders of the Court or abuses his powers or authority. Thomas vs. Indian Bank 1890.

When collector may be appointed receiver: According to Order- 40 Rule-5 of CPC where the property is land paying revenue to the Govt. of which the revenue has been assigned or redeemed and the Court considers that the interest of those concerned will be promoted by the management of the collector, the Court may with the consent of the Collector, appoint him to be receiver of such property.

NGOs

2012-04-29T14:32:00.001-07:00

Introduction:

A right means a claim advanced by an individual or a group of individuals enforceable in a court of law. Human rights are these of legal and moral rights which are inherent by nature. These rights come with birth and are applicable all members of the human family irrespective of their six, calour, race, etc.

We also say that human rights are universally inherent, inalienability and inviolable rights of all members of the human family which the states are primarily to ensure to their citizens by providing a well defined procedure.

This right comes with birth and are applicable all members of the human family irrespective of their sex, color, and race e.t.c.

The idea to a great extent evolved as a result of political absolutism since right of man became a slogan against the injustices and indignities committed by tyrannical or despotic governments. In order to limit the power of such government, attempts began to be made by the leaders of revolution to set down certain minimum rights in charters, bills, petitions or declarations that could be demanded by all citizens.

The United Nations organization which was established in 24 October 1945 and one of the purposes of the United Nations organization is to promote respect for human rights and fundamental freedoms. The charter of theUNO embodies to the concept of Human Rights.

The universal declaration of human rights which was adopted by the general assembly of UNO on 10 December 1948, which contains a vast content of Human Rights. The declaration exercised a powerful influence through out the world both internationally and nationally and has inspired the preparation of international human rights instruments both within and outside the United Nations system.

Thus it can be said that the real history of human rights at the level of international law began during the later part 20th century. It may be mentioned here that the content of human rights – civil, political, economic, social and cultural rights, has broadly been defined at various stages of modern history.

UN was explicitly rejected at the charter embodies 9 direct reference of Human Rights and fundamental freedoms in the preamble, Article-1(3), Article-13(1)(b), Article-55e, Article-56, Article-62(2), Article-68, Article-8 and Article-76(c).

(Article 2 the international covenant on Economic, Social and Cultural Rights).

Article 6-15 of the ICESCR set forth 10 rights. Article 6-27 of the JCCPR provides 22 rights.

Article 3 to 21 of the declaration set forth 19 traditional civil and political rights. Article 3, which introduces article 4 to 21, is considered as a cornerstone of the declaration. For it proclaims the rights to life, liberty and security of person essential to the enjoyment of all other rights. On the other hand, article 22 to 27 of the universal declaration of human rights recognizes economic, social and cultural rights.

NGOs

NGOs mean Local, regional and national organizations such as conservation, sportman's or commerce groups. NGOs are organizations undertaking development, advocacy or social service projects outside the state sector; also known as voluntary agencies or private and voluntary organizations (PVOs), comparable to US nonprofit organizations. Its Refers to transnational organizations of private parties, including professional associations, foundations, multinational businesses, or other groups with a common interest in a particular policy issue.

Non-governmental organizations (NGOs) are organizations whose membership is composed of private individuals and private groups, but not governments or states. For example, the International Red Cross is an international, non-governmental organization (IGO) as is the World Council of Churches. Bangladesh has been perhaps the most important hearth on the globe for non-governmental organizations.

A non-governmental organization (NGO) is an organization that is not part of a government and was not founded by states. NGOs are therefore typically independent of governments. Although the definition can technically include for-profit corporations, the term is generally restricted to social, cultural, legal, and environmental advocacy groups having goals that are primarily noncommercial. NGOs are usually non-profit organizations that gain at least a portion of their funding from private sources. Current usage of the term is generally associated with the United Nations and authentic NGOs are those that are so designated by theUN.

Because the label "NGO" is considered too broad by some, as it might cover anything that is non-governmental, many NGOs now prefer the term private voluntary organization (PVO).

A 1995 UN report on global governance estimated that there are nearly 29,000 international NGOs. National numbers are even higher: The United States has an estimated 2 million NGOs, most of them formed in the past 30 years. Russia has 65,000 NGOs. Dozens are created daily. In Kenya alone, some 240 NGOs come into existence every year. 5

History

The International Red Cross and Red Crescent Movement is the world's largest group of humanitarianNGO's.

Though voluntary associations of citizens have existed throughout history, NGOs along the lines seen today, especially on the international level, have developed in the past two centuries. One of the first such organizations, the International Committee of the Red Cross, wasfoundedin1863.

The phrase non-governmental organization came into use with the establishment of the United Nations in 1945 with provisions in Article 71 of Chapter 10 of the United Nations Charter [1] for a consultative role for organizations that neither are governments nor member states – see Consultative Status. The definition of international NGO (INGO) is first given in resolution 288 (X) of ECOSOC on February 27, 1950: it is defined as 'any international organisation that is not founded by an international treaty'. The vital role of NGOs and other "major groups" in sustainable development was recognized in Chapter 27[2] of Agenda 21, leading to revised arrangements for consultative relationship between the United Nations and non-governmental organizations.[3]

Globalization during the 20th century gave rise to the importance of NGOs. Many problems could not be solved within a nation. International treaties and international organizations such as the World Trade Organization were perceived as being too centered on the interests of capitalist enterprises. In an attempt to counterbalance this trend, NGOs have developed to emphasize humanitarian issues, developmental aid and sustainable development. A prominent example of this is the World Social Forum which is a rival convention to the World Economic Forum held annually in January in Davos, Switzerland. The fifth World Social Forum in Porto Alegre, Brazil, in January 2005 was attended by representatives from more than 1,000 NGOs. [4]

Types of NGOs

There are numerous possibilities to classify NGOs. The following is the typology the World Bank uses 1:

Operational NGOs

Their primary purpose is the design and implementation of development-related projects. One categorization that is frequently used is the division into relief-oriented or development-oriented organizations; they can also be classified according to whether they stress service delivery or participation; or whether they are religious and secular; and whether they are more public or private-oriented. Operational NGOs can be community-based, national or international.

Advocacy NGOs

Their primary purpose is to defend or promote a specific cause. As opposed to operational project management, these organizations typically try to raise awareness, acceptance and knowledge by lobbying, press work and activist events.

Regarding to human rights, there are so many organizations, not only governmental but also international organization, NGOs. And they could be classified into some categories by their own activities(visions, missions also), for example, institutions of human rights for poverty relief(eg. Oxfam, CARE), political liberalization(eg. Amnesty International, Humanrights Watch) etc. I think my examples are too wide range. But there must be more 'sophisticated'(?) methods of classification for them. I wana sort NGOs of human rights into some categories by not too wide, but not too narrow. Could you help me?

these can give you some ideas of how to classify the ones with which you are dealing. You might wiush to combine categories from more than one of these groups. For example: Human rights watch dog organizations: single country and Human rights watch dog organizations: multiple countries, or emergency relief, religious orientation and emergency relief, secular orientation.

"THEMATIC" SCOPE:

in other words the types of events or activities they are primarily concerned with - is it environment/human rights/ social issues/other? Are they campaigning groups? Watch-dog organisations? Are they primarily concerned with education? Emergency relief and REactive priorities, or emergency prevention and PROactive priorities? Are they concerned with single and very focused issues, or do they have a broader, multi-issue portfolio.

GEOGRAPHIC SCOPE:

Compare large bodies such as Greenpeace, who take on issues fron global to local (but anywhere in the world) scale, with, for example, a European NGO whose work focuses only on a specific country or region or issue overseas (e.g there is an Irish NGO which focuses on development issues and human rights in East Timor); and then there are purely local NGOs, concerned with purely local "on our own doorstep" issues (e.g. protesting against a specific waste dump or factory).

SIZE:

some (e.g. Greenpeace, Oxfam, International Committee of the Red Cross, Medecins sans Frontieres) are large, multinational bodies, with offices in many countries (and often multiple branches within a single country), and large full-time and salaried staffs. At the other extreme, I know of a number of "NGOs" that are in practice one- or two-person operations, dependent on and run by entirely voluntary (perhaps even part-time) effort.

NGO types by orientation:

Charitable Orientation often involves a top-down paternalistic effort with little participation by the "beneficiaries". It includes NGOs with activities directed toward meeting the needs of the poor -distribution of food, clothing or medicine; provision of housing, transport, schools etc. Such NGOs may also undertake relief activities during a natural or man-made disaster.

Service Orientation includes NGOs with activities such as the provision of health, family planning or education services in which the programme is designed by the NGO and people are expected to participate in its impementation and in receiving the service.

Participatory Orientation is characterized by self-help projects where local people are involved particularly in the implementation of a project by contributing cash, tools, land, materials, labour etc. In the classical community development project, participation begins with the need definition and continues into the planning and implementation stages. Cooperatives often have a participatory orientation.

Empowering Orientation is where the aim is to help poor people develop a clearer understanding of the social, political and economic factors affecting their lives, and to strengthen their awareness of their own potential power to control their lives. Sometimes, these groups develop spontaneously aroud a problem or an issue, at other times outside workers from NGOs play a facilitating role in their development. In any case, there is maximum involvement of the people with NGOs acting as facilitators.

NGO Types by level of operation:

Community-based Organizations (CBOs) arise out of people's own initiatives. These can include sports clubs, women's organizations, neighbourhood organizations, religious or educational organizations. There are a large variety of these, some supported by NGOs, national or international NGOs, or bilateral or international agencies, and others independent of outside help. Some are devoted to rising the consciousness of the urban poor or helping them to understand their rights in gaining access to needed services while others are involved in providing such services.

Citywide Organizations include organizations such as the Rotary or lion's Club, chambers of commerce andindustry, coalitions of business, ethnic or educational groups and associations of community organizations. Some exist for other purposes, and become involved in helping the poor as one of many activities, while others are created for the specific purpose of helping the poor.

National NGOs include organizations such as the Red Cross, YMCAs/YWCAs, professional organizations etc. Some of these have state and cuty branches and assist local NGOs.

International NGOs range from secular gencies such as Redda BArna and Save the Children organizations, OXFAM, CARE, Ford and Rockefeller Foundations to religiously motivated groups. Their activities vary from mainly funding local NGOs, institutions and projects, to implementing the projects themselves.

Acronyms

Nongovernmental organizations are an heterogenous group. A long list of acronyms has developed around the term 'NGO'.

These include:

INGO stands for international NGO, such as CARE;

BINGO is short for business-oriented international NGO;

RINGO is an abbreviation of religious international NGO such as Catholic Relief Services;

ENGO, short for environmental NGO, such as Global 2000;

GONGOs are government-operated NGOs, which may have been set up by governments to look like NGOs in order to qualify for outside aid;

QUANGOs are quasi-autonomous non-governmental organisations, such as the W3C and the International Organization for Standardization (ISO), which is actually not purely an NGO, since its membership is by nation, and each nation is represented by what the ISO Council determines to be the "most broadly representative" standardization body of a nation. Now, such a body might in fact be a nongovernmental organization--for example, the United States is represented in ISO by the American National Standards Institute, which is independent of the federal government. However, other countries can be represented by national governmental agencies--this is the trend in Europe.

Evolutionary stages of development NGOs

Three stages or generations of NGO evolution have been identified by Korten’s (1990) Three Generations of Voluntary Development Action. First, the typical development NGO focuses on relief and welfare, and delivers relief services directly to beneficiaries. Examples are the distribution of food, shelter or health services. The NGO notices immediate needs and responds to them. NGOs in the second generation are oriented towards small-scale, self-reliant local development. At this evolutionary stage, NGOs build the capacities of local communities to meet their needs through 'self reliant local action'. Korten calls the third generation 'sustainable systems development'. At this stage, NGOs try to advance changes in policies and institutions at a local, national and international level; they move away from their operational service providing role towards a catalytic role. The NGO is starting to develop from a relief NGO to a development NGO. 1

Purposes

NGOs exist for a variety of purposes, usually to further the political or social goals of their members. Examples include improving the state of the natural environment, encouraging the observance of human rights, improving the welfare of the disadvantaged, or representing a corporate agenda. However, there are a huge number of such organizations and their goals cover a broad range of political and philosophical positions. This can also easily be applied to private schools and athletic organizations.

Methods

NGOs vary in their methods. Some act primarily as lobbyists, while others conduct programs and activities primarily. For instance, such an NGO as Oxfam, concerned with poverty alleviation, might provide needy people with the equipment and skills they need to find food and clean drinking water.

Networking

The International Freedom of Expression eXchange (IFEX), founded in 1992, is a global network of more than 60 non-governmental organizations that promote and defend the right to freedom of expression.

Consulting

Many international NGOs have a consultative status with United Nations agencies relevant to their area of work. As an example, the Third World Network has a consultative status with the UN Conference on Trade and Development (UNCTAD) and the UN Economic and Social Council (ECOSOC). In 1946, only 41 NGOs had consultative status with the ECOSOC, but this number had risen to 2,350 in 2003.

Activist events

Greenpeace protest in Brasília (Brazil) in December 2004.

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Project management

There is an increasing awareness that management techniques are crucial to project success in non-governmental organizations.

Management of non-governmental organizations

Two management trends are particularly relevant to NGOs: diversity management and participatory management. Diversity management deals with different cultures in an organization. Intercultural problems are prevalent in Northern NGOs that are engaged in developmental activities in the South. Personnel coming from a rich country are faced with a completely different approach of doing things in the target country. A participatory management style is said to be typical of NGOs. It is intricately tied to the concept of a learning organization: all people within the organization are perceived as sources for knowledge and skills. To develop the organization, individuals have to be able to contribute in the decision making process and they need to learn.

Relations

The relationship among businesses, governments, and NGOs can be quite complex and sometimes antagonistic. Some advocacy NGOs view opposition to the interests of Western governments and large corporations as central to their purpose. But NGOs, governments, and companies sometimes form cooperative, conciliatory partnerships as well.

Staffing

Not all people working for non-governmental organizations are volunteers. Paid staff members typically receive lower pay than in the commercial private sector. Employees are highly committed to the aims and principles of the organization. The reasons why people volunteer are usually not purely altruistic, but self-serving: They expect to gain skills, experience and contacts.

There is some dispute as to whether expatriates should be sent to developing countries. Frequently this type of personnel is employed to satisfy a donor, who wants to see the supported project managed by someone from an industrialized country. However, the expertise these employees or volunteers may have can be counterbalanced by a number of factors: the cost of foreigners is typically higher, they have no grassroot connections in the country they are sent to and local expertise is often undervalued.2

The NGO-sector is an important employer in terms of numbers. For example, by the end of 1995, CONCERN worldwide, an international Northern NGO working against poverty, employed 174 expatriates and just over 5,000 national staff working in ten developing countries in Africa and Asia, and in Haiti.

Funding

Large NGOs may have annual budgets in the millions of dollars. For instance, the budget of the American Association of Retired Persons (AARP) was over $540 million dollars in 1999.[5] Human Rights Watch spent and received US$21,7 million in 2003. Funding such large budgets demands significant fundraising efforts on the part of most NGOs. Major sources of NGO funding include membership dues, the sale of goods and services, grants from international institutions or national governments, and private donations. Several EU-grants provide funds accessible to NGOs.

Even though the term 'non-governmental organization' implies independence of governments, some NGOs depend heavily on governments for their funding. A quarter of the US$162 million income in 1998 of the famine-relief organization Oxfam was donated by the British government and the EU. The Christian relief and development organization World Vision US collected US$55 million worth of goods in 1998 from the American government. Nobel Prize winner Médecins Sans Frontières (MSF) (known in English as Doctors Without Borders) gets 46 percent of its income from government sources.5

WORKSHOP ON THE ROLE AND ACTIVITIES OF NGOS IN NATIONAL DEVELOPMENT:

Non-Governmental Organisations (NGOs) play a significant role in the development of any nation. Thus they are key partners in national development as they focus on crucial activities of national concern such as the welfare of children, the disabled and the aged, as well as helping disadvantaged communities to access basic needs such as health and education among others.

In Zimbabwe like elsewhere, NGOs are also expected to partner the Government in its efforts to spearhead development, particularly among the poor and the marginalised communities.

It is however, very worrying to note that some unscrupulous NGOs have abandoned their original mandate and have now turned themselves into leaders of a bandwagon crusade that is calling for a self-conceived alternative with regards to human rights, constitutional matters and democracy.

These foreign-funded and misguided sections of the NGO sector, which represents no one, but their financiers continue to live in the world of imagination, wishing that one day Zimbabweans will believe in their ambiguous adventure. By their own admission, they have failed to fool anyone and they remain in the fringes of society with their middle-class leadership, foreign funded political agendas, urban locations and unholy matrimony with the equally misguided opposition political parties.

These donor-funded organisations have not hid their political agendas, posing as an alternative to the state even though they have no such mandate from the people. This way, these NGOs have made themselves enemies of Zimbabwe, as they do not represent the agendas and interests of the nation but their sponsors.

2.0 Rationale

The Government of Zimbabwe however, still sees reason in engaging those NGOs that are true partners in development, even with regards to the human rights, constitutional and democracy issues. We also take cognisance of the emergency of the two camps in the NGOs who focus on human rights and democracy debate, with the foreign funded ones parading themselves as a supreme alternative to the state while others correctly believe in engaging the state in these fundamental issues.

It is in that respect that the Department of Public and Interactive Affairs in the Office of the President and Cabinet is initiating an introspection process with regards to the relationship between among the State, the NGOs and the citizens. There is an imminent need for a consensus on the role of NGOs in Zimbabwe, not just from the NGO sector alone, but especially from the ordinary citizens who are the intended beneficiaries of NGOs’ activities as well as the Government as the Policy-Maker and Regulatory Authority.

The introspection process will culminate in the convening of a one-day workshop titled “Role and Activities of NGOs in National Development”. The workshop is expected to attract about 200 participants from the following institutions: Government Ministries, Local and International Non-Governmental Organisations, Inter-Governmental Organisations such as the Southern African Development Community (SADC), African Union (AU) and the United Nations Development Programme (UNDP) among others.

3.0 Expected Outcomes of the Workshop

By the end of the daylong event, the following outcomes are expected:

q Creation of an atmosphere of trust between and among the Government, NGOs and the ordinary citizens.

q Open avenues of dialogue and interaction between and among the Government, NGOs and the citizens.

q Exploration of further avenues of co-operation.

q Having a greater appreciation of the NGOs.

Workshop on National Institutions for Promoting and Safeguarding Human Rights (NHRIs) and Non Governmental Organisations (NGOs)

1 October 2003

Those taking the floor at this workshop, which was jointly organised by the Human Rights Grouping of NGOs and the Commissioner for Human Rights, were

As speaker:

- Mr Alvaro GIL-ROBLES, Council of Europe Commissioner for Human Rights,

- Mr Daniel ZIELINSKI, Chair of the Liaison Committee of NGOs enjoying consultative status with the Council of Europe

As Chairs of the working sessions:

- Mr Markus JAEGER, Deputy Director of the Office of the Commissioner for Human Rights,

- Mr Pierre BOULAY, Chairman of the Human Rights Grouping of NGOs enjoying consultative status with the Council of Europe

The following report summarises the contributions made by representatives of National Human Rights Institutions from four member states of the Council of Europe:

- Mr Wolfgang HEINZ (German Institute for Human Rights),

- Ms Maria LIISBERG (Danish Institute for Human Rights)

- Mr Marc LEYENBERGER (National Consultative Commission for Human Rights, France)

- Mr Ciaran O MAOLAIN (Northern Ireland Human Rights Commission)

I. Aims, common objectives and points of reference raised by the representatives of NHRIs

A) The core values of independence and pluralism of the institutions

B) The will to focus on needs in the field (raised in particular by Mr HEINZ)

C) The need to focus on representation of civil society (raised in particular by

Mr LEYENBERGER, who expressed the view that the NGOs represented - 33 at present - were those most active and effective in the human rights sphere).

D) The advantage of linking different human rights organisations (NGOs, etc) in a national network (point raised by Ms LIISBERG, endorsed by Mr HEINZ) and the strengthening of relations between NHRIs and NGOs, in particular through consultation mechanisms (raised by Mr O MAOLIN, endorsed by Mr HEINZ)

Activities of NGOs in Bangladesh:

The NGO sector in Bangladesh is highly organized and relatively homogeneous. Most NGOs utilize a branch and headquarters structure in which branches have limited autonomy from headquarters. At the branch level, most NGOs in the country, whether big or small, focus on credit services, derive more of their income from fees for services than from grants, rely on salaried rather than voluntary staff, keep detailed financial accounts that are externally audited, and hire middle-class college educated men as managers. The convergence to a modal institutional form probably is the result of the persuasive power of ideas, sociological pressures toward acculturation and conformity, as well as material incentives.

Dhaka Ahsania Mission A voluntary organization striving towards sustainable development.

Founded in 1958 with the aim to develop social and spiritual life of the entire human community, DAM works with basic thrust on poverty alleviation and socio-economic empowerment of the poor, specially the disadvantaged.

Major Functions

Implements community-based programmes

Develops innovative education & communication materials

Operates educational, vocational & health institutions

Provides wide range of training & consultancy services

Undertake advocacy for policy changes in strategic issues

Work at international level.

Programm Sectors

In education sector, DAM actively works in policy advocacy through dialogues, besides providing education to the children, adolescents and adults in both non-formal and formal programmes. DAM also works on community empowerment to equip them to claim quality education, to monitor access and efficiency of available education services.

For improvement of livelihood conditions, DAM focus on capacity building of target disadvantaged households to engage in income generating activities, in particular through promoting agricultural diversity, establishing market-oriented vocational training facilities supported by employment support service, market linkage and facilitating access to micro finance.

DAM’s health service focus is on enhancing complemented health service system by engaging in capacity building of health workers, facilitating effective and sustainable water and sanitation practices, establishment of community managed ‘satellite clinics’, prevention of drug abuse and HIV/AIDS, and cancer care and mental health care.

In Human Rights & Social Justice sector, DAM’s major focus is to mobilize communities to stand up for their social and human rights in the broadest sense including the right to live in a safe and peaceful environment, gender rights, and child rights. Besides, DAM joins policy dialogue on related issues at the national level.

Resource Mobilization and Development Division

Resource Mobilization & Development (RMD) Division is an organizational strategy of Dhaka Ahsania Mission to promote its program for raising funds from donors and partnership with development agencies globally and locally. The division has two foreign wings called DAM-UK and DAM USA as registered charity in UK and USA respectively to support fund raising activities. RMD division has prepared a resource mobilization strategy to support DAM’s ten-year programmatic perspective plan and five-year operational plan. The resource mobilization strategy includes:

Strategic action for strengthening institutional capacity of DAM.

Assessing of existing and funding needs for program

Grants market research and funding opportunities from institutional, corporate & private donors.

Developing fund raising tools, techniques, methods and approaches.

The operational features are:

Strengthening institutional capacity on resource mobilization and business development.

Development of proposal, documents and materials on programs.

Identifying potential donors/ development agencies for collaboration.

Communication and presentation of DAM’s program and development of partnership with donors/development agencies.

Participation in competitive biddings locally and globally.

Retention of donors by maintaining relationship and accountability on donors’ contribution.

Social business development for program sustainability.

Internship and Study visits

DAM offers internship to students towards promotion of international understanding, sharing of good practices and facilitating increase of knowledge base on development education among the students in higher education. Beside students from college and university in Bangladesh, students studying in other countries, irrespective of nationalities, are encouraged as intern to work in DAM

DAM works in the regional and internatiomal arena also in various ways. Its presence participation in relevant events and programs, particularly in the Asia Pacific region, has been always very prominent and visible. During the year 2005-06, the dimensions of international collaboration have been expanded Professional services at international level In the field of education In the field of education, there were a number of events where DAM has extended the hand for technical collaboration to various organizations. Following are few exampl Presentation on “How ICT and Distance Education Methodologies can be used to effect change in Bangladesh and South Asia: Dhaka Ahsania Mission’s Perspective” by DAM President in the Commonwealth of Learning South Asia Consultative Meeting held in Dhaka from 26- September 20 Participation of Mr. Kazi Rafiqul Alam as the Asian regional representative in the Editorial Board Meeting of Education for All (EFA) Global Monitoring Report held in the UNESCO, Paris on 11-12 May 2000 Facilitation of the ISESCO Training Workshop on slamic Education for Girls and Women Literacy held in Dhaka from 23-28 April 2006 and the Sub-Regional Workshop on Planning NGO Strategy for Adult Education held also in Dhaka from 16-18 May 2006 DAM was also invited by the State Resource Centre, West Bengal India to provide technical support in the Workshop on `Monitori Supervision and Evaluation of Continuing Education Program’ held in the North Bengal University Shiliguri, Darjeeling, India from 11-16 June 2006. Organized at DAM Auditorium a Training Workshop on Planning and Management of Community Learning Centres (9-13 February 2006) for a group of 17 senior officials of MoE of Iraq led by their Director General of Non-formal Education Organized an international workshop on Planning NGO Advocacy Strategy for Adult Literacy and Learning (16-18 May 2006). 21 Chief Executives/Directors of NGOs of Pakistan, India, Nepal and Bangladesh participated.

Professional services at international level

DAM works in the regional and international arena also in various ways. Its presence and participation in relevant events and programs, particularly in the Asia Pacific region, has been always very prominent and visible. During the year 2005-06, the dimensions of international collaboration have been expanded.

Opening of DAM offices in India and Pakistan:

As part of extending collaboration and between the practitioners in South Asia and with the aim of undertaking joint programmes, in 2005-06 DAM started the process of opening its country offices in India and in Pakistan. As a first measure the Country Representatives have been posted. Because of the interest of the counterpart development practitioners in both countries, the official formalities for opening offices have progressed well. The offices will start functioning from 2007.

In Africa, DAM provided technical support in the `Regional workshop on Capacity Building of Literacy and Non-Formal Education Facilitators in Africa’ held in Bamako, Mali from 25 July-04 August 2005, where the Director of Training and Materials Division attended as an Asian Expert and shared the Asia-Pacific regional experience as well as DAM’s experience.

Organising Regional Workshops and Training Programmes

A regional training program on prevention of drug abuse was organized from 6-10 February 2006. It was a five-day long training course and participants came from four SAARC countries. Main participants of the training course were the prison officials. The training unit of DAM organized the training in cooperation with UNODC and National Institute of Criminology and Forensic Science.

Organized and conducted a Sub Regional Workshop on Capacity Development on Supervision, Monitoring and Evaluation of National Level NFE Programs (19-24 November 2005) at Ambala Inn Hotel, Dhaka attended by 20 senior education officers from Bhutan, India, Nepal, Pakistan and Bangladesh.

Organized at DAM Auditorium a Training Workshop on Planning and Management of Community Learning Centres (9-13 February 2006) for a group of 17 senior officials of MoE of Iraq led by their Director General of Non-formal Education

Organized an international workshop on Planning NGO Advocacy Strategy for Adult Literacy and Learning (16-18 May 2006). 21 Chief Executives/Directors of NGOs of Pakistan, India, Nepal and Bangladesh participated.

Charity Fund / Zakat fund

Dhaka Ahsania Mission operates a charity fund to support the distressed families. Based on the founding aims of the organization to help the suffering humanity DAM mobilises fund to support the poor people. Every year generous people from various locations donate their Zakat and other funds to this fund to support the vulnerable people.

DAM utilizes these funds for various purposes. In the year 2006-7, a total amount of Tk. 3,985,646 were distributed to the people for following purposes:

1. Treatment for helpless poor patient / cancer patient.

2. Repair house of poor people

3. Supporting extreme poor for livelihood/ increased earning

4. Assist the people who suffer from the natural disaster.

5. Support to meet marriage expenses of girls from poor families.

6. on cost for children from vulnerable families.

DAM also donated TK. 2,387,366 to 285 poor cancer patients at Cancer Detection Centre and Hospital at Mirpur, Dhaka for cancer treatment.

The charity fund is managed by a specialised committee constituted by DAM Executive Committee, meeting at regular interval. The committee scrutinizes the applications for support and ensures proper utilization of the donation money. The donors are kept informed about use of their money.

For the year 2007-8, besides regular support to the distressed families, DAM has planned to undertake, following projects with the support from the charity fund:

Establish some free homeopathic dispensary for the urban poor people. More than 1,50,000 people will get free treatment / low cost treatment from these dispensaries.

Ahsania Mission Cancer and General Hospital at Uttara will start activities from December 2008. There would be required provision for free treatment cost for poor people is increased.

There are many children live in streets of Dhaka city. DAM took a new initiative for those children and wants to establish a “ Children City”, providing vocational training and life skill education to these children.

We cordially requests the generous people to donate Zakat and other funds to DAM Charity Fund and help the person who really needs support to live at subsistence level. Donation can be directly paid to the following bank account:

Dhaka Ahsania Mission

Account Number 12100036821

Mercantile Bank

Dhanmondi Branch, Dhaka.

The Organizations related to Bangladesh Human Rights

1.Adhikar

41 North Jatrabari, Dhaka-1204.

Tel.(880-2)25-74-41.

2.ADAB

1/3, Block F, Lalmatia Dhaka 1207

Tel: 9116184, 9126415, 8122845-7

E-mail: adab@bdonline.com

Ain O Shalish Kendro

55 Inner Circular Rd

Shantinagar, Dhaka 1000.

Tel.(880-2)316-247. Fax.(880-2)863-409

Amnesty International Bangladesh

Section (AI)

GPO Box 2242, Dhaka.

Tel.(880-2)505-901

Asian Cultural Forum on Development - Bangladesh (ACFOD)

C/O TARD, GPO Box 4047, Dhaka 1000. Tel.(880-2)81-37-58. Fax.(880-2)81-30-14.

Assistance for legal and Humanitarian Affairs Bangladesh (ALHAB)

GPO Box No. 377, Ramna, Dhaka 1000. Tel:(880-2)865-409.

Association for Social Advancement (ASA)

5/12 Block B, Humayun Road

Mohammadpur, Dhaka.

Tel.(880-2)316-375; 324-731; 31-3318;

32-7424; 32-4162; 31-6184.

Association for Liberty Peace and Humanity (ALPH)

Room No. 7, Supreme Court Bar Association Building, Dhaka 1000.

Tel.(880-2)23-26-28

Association for Realisation of Basic Needs (ARBN)

House 47, Road 27

Dhanmondi R. A. Dhaka.

10.

Association of Development Agencies in Bangladesh

1\3 Lalmatia, Block F, Dhaka 1207

Tel.(880-2)812-353. Fax.(880-2)813-095

11.

Bangladesh Buddhist Federation

DMC-285 South Kafrul

Cantonment, Dhaka.

12.

Bangladesh Human Rights Commission(BHRC)

1 Kazi House, 222 Mazibag, Dhaka 1217./

or GPO Box 2099, 77 Purana Paltan Line, Dhaka 1000. Tel.(880-2)40-95-97.

Fax.(880-2)83-32-12.

13.

Bangladesh Inter-Religious Council for Peace and Justice (BICPAJ)

C/O F. Rahman.* 4/10 Iqbal Road, Mohammadpur, Dhaka 1207.

Tel.(880-2)32-87-07. Fax.(880-2)41-12-66

14.

Bangladesh Mahila Parishad

10\B Segun Bagicha, Dhaka 1000.

Tel.(880-2)24-50-49.

Fax.(880-2)83-39-66

15.

Bangladesh Manabadhikar Bastabayan Shangstha (BMBS)

48 Bijoy Nagar Road, Dhaka-1000.

Tel.(880-2)40-9298; 41-7654; 23-2133; 23-3741. Fax.(880-2)86-36-89

Bangladesh Manobadhikar Samonnoy Parishod (BMSP)

4/3 Block - E, Zakir Hossain Road

Lalmatia, Dhaka-1207.

Fax.(880-2081-30-95 (Attn. BMSP/CCHRB).

17.

Bangladesh National Women Lawyers Association

C/O Chancery Chambers, 62-63 Motijheel C, Dhaka 1000. Tel.(880-2)41-25-05.

Fax.(880-2)86-36-89

18.

Bangladesh Rehabilitation Centre for Trauma Victims

30 Bijoy Nagar, Dhaka 1000

Tel.(880-2)40-95-97.

Fax.(80-2)83-32-12..

Bangladesh Rural Advancement Committee (BRAC)

75 Mohakhali C/A, Dhaka-1212.

Tel.(880-2)883-614, 884-180 to 88; 600-204; 600-161/4; 600-106/7.

Fax.(880-2)883-542; 883-614.

20.

Bangladesh Shishu Adhikar Forum (BSAF)

C/O Dr. Ahmadullah Mia, Chair,

UCEP, Plot 2 & 3, Mirpur-2,

Dhaka1210

21.

Bangladesh Society for the Enforcement of Human rights (BSEHR)

- see: Bangladesh Manabadhikar Bastabayan Shangstha.

22.

BILS

House 2, Road 13, Dhanmondi R/A,

Dhaka 1209 Tel: 8123869-70

E-mail: bils@agni.com

23.

Brothers to All men International, Bangladesh (BAM)

6/9 Lalmatia, Block D, 3rd Floor,

Dhaka 1207. Tel.(880-2)811-029.

24.

Center for Victims of Human Rights Violations (CVHRV)

P.O. Box 7300, Dilkusha, Dhaka.

Fax.(880-2)863-245 Attn: AIMG

25.

Commission for Justice and Peace, Catholic Bishops Conference of Bangladesh (CJP),

GPO Box-5, Dhaka 1000.

Tel.(880-2)417-936 (O).

26.

Community Development Library (CDL)

House 39, Road 14/A, Dhanmondi R/A

Dhaka 1209.

Tel.(880-2)13-604; 813-769

27.

Comprehensive Rural Educational, Socil, Cultural and Economical Centre (CRESCENT)

GPO Box 2095, Dhaka.

28.

CRESCENT Research Information and Student Service (CRISS)

PO Box 2095, Dhaka..

29.

Defence for Children International - Bangladesh Section (DCI)

C/O Madaripur Legal Aid Association

New Town, Madaripur.

30.

Gonoshahajjo Sangstha

41 Sir Syed Ahmed Rd.,

Mohammadpur, Dhaka.

Tel.(88-02)814-986. Fax.(88-02)863-495

31.

Democracywatch

7 Circuit House Road

Ramna, Dhaka-1000

Phone: 880-2-9344225/6, Fax: 880-2-8315807

email: dwatch@bangla.net

web: http://www.dwatch-bd.org

32.

Humanist and Ethical Association of Bangladesh (HEAB)

55\D Dhaka University Staff Quarter, Dhaka. Tel.(88-02)50-36-11. Fax.(88-02)86-30-60

33.

Hotline Bangladesh

GPO Box 5, Dhaka 1000.

Tel.(880-2)417-936.

34.

Institute of Democratic Rights (IDR)

House No.13, Rd. No.7, Dhanmondi R/A Dhaka-1205. Tel.(880-2)508-393. continue ...

35.

Humanitarian Agency for Development Services (HADS)

Sirajuddoulah Rd., Thakurgaon 5100.

Tel.(880-0561)3513.

36.

Odhikar

A Human Rights Organisation

3/6 Shegun Bagicha Dhaka-1000, Bangladesh Telephone: 880-2-9560173,

Fax: 880-2-9567280 E-mail:odhikar@bangla.net; odhikar@yahoo.com URL: www.odhikar.org

37.

LAW WATCH

A Centre for Studies on Human Rights Law House; E-13, 2nd Floor, Pallabi Extension Mirpur, Dhaka-1216, BANGLADESH Telephone:880-2-8020628,

E-fax/Voice mail: 1-530-326-9189

E-mail: lawwatch2001@yahoo.com, mkabir99@hotmail.com

URL : geocities.com/lawwatch2001/lw.html

38.

Liberty International Bar Association Building

Suit No.1, First Floor, Mymensingh.

39.

Law and Meditation Centre

7\c Bailey Road, Dhaka.

Tel.(88-02)863-966.

40.

Man for Mankind (MAM)

GPO Box 3363, Dhaka-1000.

Fax.(880-2)833-983; 833-120; 833-085.

41.

Madaripur Legal Aid Association (MLAA)

New Town, P.O. Box No.9, Madaripur 7900. Tel.(880-661)518-356/316.

42.

Naripokkho

House No.51/D, Road No.9A,

Dhanmondi R/A

Dhaka 1209.

43.

Maulik Chahida Nischitakoron Samity (ARBAN)

P.O.B. 2242, Dhaka 1000.

Tel.(880-2)51-59-01; 31-62-87.

44.

Paralegal Training Services Centre (PTSC)

GPO Box 2346

Dhaka 1000.

Tel.(880-2)40-95-97; 41-16-25.

Fax.(880-2)83-32-12 Attn:PTSC.

45.

Palli Progoti Shahayak Samity (Faridpur) (PPSS)

Vill & PO Komorpur,

Faridpur.

46.

Rohingya Solidarity Organizations, Arakan (Myanmar)

C/O PO Box 795, Chittagong.

Tel.(880-31)25362.

47.

Resource Integration Centre

House # 3/9, Block-C, Lalmatia,

Dhaka 1207.

48.

World Peace Organization

3012 Johnson Road, Dhaka.

49.

Shaishob

2/1 Humayun Road Mohammadpur

Dhaka.

50.

Ubinig

House # 8/1 Lalmatia, B-Block Road 30

Dhaka.

51.

Terre des Hommes

House No.27, Road 14 A, Dhanmondi

Dhaka 1209.

52.

South Asian Association for Right to Development

Globe Chamber 2nd Floor, 104

Motijheel Commercial Area, Dhaka-1000. Tel.(880-2)234-098; 252-694.

Fax.(880-2)833-3161

53.

Under Privileged Children's Educational Programme (UCEP)

Plot No.2 & 3, Mirpur-2

Dhaka-1210.

54.

White Eye

1046.West NandiPara,

Dhaka-1214

E-mail:atsukokabir@yahoo.com

55.

Working for Better Life (WBL)

Head Office: House-7, Road-30,

Sector-7, Uttara, Dhaka

Ph: ( 88-02- ) 8916966, 8918851

Fax: 88-02- 8918798,

Email: badhon@gononet.com,

URL : www.workingforbetterlife.org

Plays a vital role for the protection and promotion of Human Rights through out the world. In Bangladesh there are three NGOs which have a consultative status with the Economic and Social Council is:

1) LIBERTY INTERNATIONAL AT MYMENSING.

2) DHAKA AHSANIA MISSION

3) MATRY SADAN AT AZIMPUR IN DHAKA.

It is necessary to mention here that the activities of the NGO must be controlled for various. NGOs expend (60%) income of the total revenues in order to maintain their office, employees, transport etc.

So we can say that, only three NGOs at Bangladesh have got status with the economic and social council.

Administrative Law

2012-04-29T13:22:00.000-07:00

Administrative law is the body of law regulating government decision-making. Review of administrative decisions can take place internally and externally.

Scope and nature of administrative law:

(1) Administrative law deals with executive, judicial and legislative powers and function of the administration;

(2) Administrative law prescribes various principle and rules by which official action is reached and reviewed in relation to individual liberty and freedom;

(3) Administrative law deals with those means or control mechanisms which keep the executive, its various agencies within legal bounds.

Sources mean the places of origin. So “sources of administrative means places wherefrom administrative laws have been origined”. Since administrative law is a law. So the sources of law are the sources of administrative law. Thus the following sources are treated as the sources of administrative law-

(1) Constitutional law: constitutional law equal to (Constitution+ Constitutional precedent+ constitutional convention) we can not find any active constitutional convention in Bangladesh.

(a) Constitution: Part 9 of the Bangladesh constitution deals with the services of Bangladesh and this part cover Articles 133-141, which is indeed/basically administrative law.

(b) Constitutional precedent/ case law: sectary, Ministry of Finance vs. Masder Hossain, 52DLR (2000) AD 86.

(2) Act/ Ordinance: Act or Ordinance is the important sources of Administrative law. For example-

(i) The Administrative Tribunal Act, 1980

(ii) Public Servants (Retirement) Act, 1974;

(iii) Official Secrets Act, 1923

Ordinance-

(i) The Government Servants (Dismissal on Conviction) Ordinance, 1985

(ii) Public Servants (Marriage with Foreign Nationals) Ordinance, 1976.

(3) Delegated legislation- (Rules and regulation):- Administrative law exists in various rules, regulation, by laws etc. for example-

(i) Rules:-

(a) Government servants (discipline and appeal) rules, 1985.

(b) Bangladesh Civil Service Seniority Rules, 1983.

(ii) Regulation:-

(a) Bangladesh Shilpa Bank Employees Service Regulations, 1984.

(b) Bangladesh public Service Commissions (Consultation) Regulation, 1979.

(iii) By Law:-

(a) Paurashava Water Supply (Model) Byelaws, 1999.

(4) Judicial Precedent/ Case laws:-

(a) Abdul Latif mirza vs. Govtment of Bangladesh,(1982)34 DLR(AD )173.In this case the Appellate Division of the Bangladesh Supreme Court observe that the principle of natural justice is a part of the law of the country.

Abdur Rahman and other vs. Sultan and others, (1983) BLD (AD), 129. In this case the Appellate Division of the Bangladesh Supreme Court held that the Civil Procedure Code deals with procedural matters and not substantive rights. The procedural laws are grounded on principle of the natural justice.

Ombudsman

There are some reasons for growth on Ombudsman.

In the 1st instance that in judicial remedy there are many defect. For example in a judicial remedy the complaint is required to led any evidence or to prove his case or court fees are payable for filing a complaint is justified or unjustified and also need the lawyer it is very lengthy process.

On the other hand Executive or administrative remedy from higher authority, it is not acceptable because it is buyouts by lower authority.

For such reason the ombudsman is growth because in judicial and executive remedy have many defect. So it is more batter the judicial and as will as executive remedy.

Doctrine of ultra vires means that which strikes down and act where it violates statute, principles on natural justice. It strikes down a provision where it is in conflict with its parent law or the constitutional law as the case may be.

Substantive ultra vires: Whan any act or any provision is in conflict with its parent law or constitutional law as the case may be it is called substantive ultra vires.

Legal effect: null and void.

Procedural ultra vires: When any act is done or any provision is made in violation of certain procedural requirements prescribed by the parent law or by the general law, it is procedural ultra vires.

In case of procedural ultra vires we find traces of two different provisions-

(a) Directory procedural provision;

(b) Mandatory procedural provision.

Legal effect: Violation of directory procedural provision does not make the Act or provision null and void. But violation of mandatory procedural provision makes the act or provision null and void.

Example: If any Criminal Court judge gives its judgment without following the procedure as given in the Criminal Procedure Code it is procedural ultra vires.

How would you understand which is directory procedural ultra vires and which is mandatory procedure ultra vires. It depends upon the words which are used in law or the spirit of the law. For example shall means its is sometimes mandatory and sometime directory also many sense it means directory but in certain cases it is mandatory.

But it is show that if this judgment mandatory it is null and void and if it is directory it is not null and void. What is directory or mandatory procedural ultra vires it depends upon the nature of the law and circumstance of the prevailing or the word used in the law.

Natural justice

In Bangladesh there is no statute laying down the minimum procedure which administrative authorities must follow while exercising decision making power. Natural justice is concept of common law and it is the common law world counterpart of the American “procedural due process”.

In Civil Court Procedure prescribed by C.P.C. And Criminal Court procedure prescribed by Cr.P.C. On the other hand Administration Adjudication follows prescribed procedure given in the enabling law, but is some case Administration Adjudication follows prescribed procedure has not given in the enabling law in that case natural justice is applicable.

Natural justice has meant many things to many writers, lawyers and systems of law. Professor H.W.R. Wade defines natural justice as “the name given to certain fundamental rules which are so necessary to the proper exercise of power that they are projected from the judicial to the administrative sphere”. Natural justice is the price of the rule of law.

The principle of natural justice through various decisions of courts can be easily ascertained, though their application in a given situation may depend on multifarious factors. In Bangladesh, though natural justice enjoys no express constitutional status but the appellate Division of the Supreme Court of Bangladesh in Abdul Latif Mirza Vs. Government of Bangladesh, (1982) 34 DLR(AD) 173, observed observe that the principle of natural justice is a part of the law of the country. “It is now well-recognised that the principle of natural justice is a part of the law of the country”.

In legal sphere the concept of natural justice generally covers two principles:-

(1) Nemo judex in cause sua: No one should be made a judge in his own cause or the rule against bias.

(2) Audi alteram partem: Hear the other party, or the rule of fair hearing, or the rule that no one should be condemned unheard.

Ultra vires

The doctrine of ultra vires was first introduced in relation to the statutory companies. However, the doctrine was not paid due attention up to 1855. The doctrine of ultra vires was first established the following case was decided by the House of Lords In Ashbury Railway Carriage and Iron Company Ltd vs. Riche, (1875) L.R. 7 H.L. 653.

Ultra Vires Latin phrase meaning "beyond power or authority" describing an act by a corporation that exceeds its legal powers. For example, corporations do not have the authority to engage in the insurance business without a charter. A corporation offering insurance without authority would be acting ultra vires.

Ultra vires Literally, ‘beyond powers’. Ultra vires has two meanings: (1) substantive ultra vireswhere a decision has been reached outside the powers conferred on the decision taker; and (2)procedural ultra vires where the prescribed procedures have not been properly complied with. The doctrine of ultra vires gives courts considerable powers of oversight over decision-making.

In corporate law, ultra vires describes acts attempted by a corporation that are beyond the scope of powers granted by the corporation's charter, the laws authorizing its formation, or similar founding documents.

In administrative law, an act may be judicially reviewable ultra vires in a narrow or broad sense. Narrow ultra vires applies if an administrator did not have the substantive power to make a decision or it was wrought with procedural defects.

Basic principles included the following:

An ultra vires transaction might be ratified by all the shareholders.

The doctrine of estoppel usually precluded reliance on the defense of ultra vires where the transaction was fully performed by one party

A fortiori, a transaction which was fully performed by both parties could not be attacked.

If the contract was fully executory, the defense of ultra vires might be raised by either party.

If the contract was partially performed, and the performance was held to be insufficient to bring the doctrine of estoppel into play, a suit for quasi contract for recovery of benefits conferred was available.

If an agent of the corporation committed a tort within the scope of his or her employment, the corporation could not defend on the ground the act was ultra vires.

Effect:

(i) Ultra vires contract: A contract beyond the objects clause of the company’s memorandum is an ultra vires contract and cannot be enforced by or against the company.

(ii) Ultra vires borrowings: A borrowing beyond the power of the company (i.e. beyond the objects clause of the memorandum of the company) is called ultra vires borrowing.

(iii) Ultra vires torts or crimes: As regards the extent to which the ultra vires rules applied to torts and crimes, the law is not well settled. The following views may be mentioned.

The rule of law

The rule of law, in its most basic form, is the principle that no one is above the law. Rule of law means A legal system in which rules are clear, well-understood, and fairly enforced, including property rights and enforcement of contracts.

(iv) Words, by "rule of law" we mean a western tradition that can be traced back to the Roman republics and was fully developed by the liberal constitutionalism. It is characterized, in the words of Max Weber, by "legal domination."

(v) Concept: The rule of law means; in the first place, the complete superiority or prevalence of usual law as opposed to the power of illogical power, and excludes the survival of arbitrariness, prerogative. "Rules of Law" has not been implemented in Britain in its dispatch and strength. Legally speaking, the greater is opposed from the limits understood in the "Rule of Law" as 'King can do no wrong' is the essential doctrine of their political system. Hence the ruler cannot be summoned in any court of law, though all servants of the Crown are legally liable to courts for their departmental affairs.

Under Crown Proceeding Act of 1947, government officials enjoy sure civil liberties. A citizen can be compulsory serious punishment who gives on lawsuit against a public officer but fails to prove the accusation in the court. Moreover, no proceedings can be done against judges concerning the presentation of their duties.

(vi) The Rule of Law, in its most basic form, is the principle that no one is above the law. Thomas Paine stated in his pamphlet Common Sense (1776): "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."

(vii) In England, the issuing of the Magna Carta was a prime example of the "rule of law." The Great Charter forced King John to submit to the law and succeeded in putting limits on feudal fees and duties. Another earlier example was Islamic law and jurisprudence, which recognized the equal subjection of all classes, including caliphs and sultans, to the ordinary law of the land.

(viii) Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. Samuel Rutherford was one of the first modern authors to give the principle theoretical foundations, in Lex, Rex (1644), and later Montesquieu in The Spirit of the Laws (1748).

(ix) The concept is not without controversy, and it has been said that "the phrase 'the Rule of Law' has become meaningless thanks to ideological abuse and general over-use".

Administrative discretion -The performance of acts required to be done by an administrative agency may depend upon considerations not entirely susceptible of proof or disproof and which, considering the circumstances and the subject matter, cannot be supplied by the legislature.

Administrative Arbitrariness: Administrative discretion is never unlimited. Administrative body while taking decision must, a part from law, be guided by relevant consideration and not by irrelevant. If its decision is backed/ influenced by externals considerations which (it ought not to have taken in to account/ it should not be taken in to account) then decision can not stand, since that is administrative arbitrariness.

Control at the stage of delegation of discretion: The court exercises control over delegation of discretion of power to the administration by adjudicating upon the constitutionality of the law under which such power are delegated. If the law gives/ confers vague and wide discretionary power to any administrative authority it may be declare Ultra vires. Law may confer discretionary power but that must be backed/ guided/ supported, by policy and specific guideline.

An ombudsman (English plural: ombudsmans or ombudsmen) is an official, usually (but not always) appointed by the government or by parliament, who is charged with representing the interests of the public by investigating and addressing complaints reported by individual citizens.

a government appointee who investigates complaints by private persons against the

There are some reasons for growth on Ombudsman.

On the other hand Executive or administrative remedy from higher authority, it is not acceptable because it is buyouts by lower authority.

For such reason the ombudsman is growth because in judicial and executive remedy have many defect. So it is more batter the judicial and as will as executive remedy.

State

1. The executive (Government) 2. Legislative (parliament) 3. Judicial (court/ tribunal)

(I). Governmental department (II). Governmental companies (III). Statutory public corporation

A Statutory Corporation is a corporation created by statute. Their precise nature varies by jurisdiction thus they might be ordinary companies/corporations owned by a government with or without other shareholders, or they might be a body without shareholders which is controlled by national or sub-national government to the (in some cases minimal) extent provided for in the creating legislation.

Parliamentary control

Rejection of a statutory instrument, although more unlikely than with Acts, will be fatal (since statutory instruments cannot be amended), and the Lords are not constrained by the Parliament Acts.

Statutory instruments may be subject to 3 types of parliamentary control (controls are specified under the enabling Act):

Court

A court is a public forum used by a power base to adjudicate disputes and dispense civil, labour, administrative and criminal justice under its laws.

Tribunal is a generic term for any body acting judicially, whether or not it is called a tribunal in its title. a formal hearing or forum for the investigation or resolution of a dispute or conflict. A tribunal may be established on behalf of a national.

Jurisdiction:

PART VI

THE JUDICIARY

[CHAPTER I- THE SUPREME COURT

94. Establishment of Supreme Court (1) There shall be a Supreme Court for Bangladesh (to be Known as the Supreme Court of Bangladesh) comprising the Appeallate Division and the High Court Division.

(2) The Supreme Court shall consist of the Chief Justice, to be known as the Chief Justice of Bangladesh, and such number of other Judges as the President may deem it necessary to appoint to each division.

(3) The Chief Justice, and the Judges appointed to the Appellate Division, shall sit only in that division, and the other Judges shall sit only in the High Court Division.

(4) Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.

95. Appointment of Judges (1) The Chief Justice and other Judges shall be appointed by the President.

(2) A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and-

(a) has, for not less than ten years, been a advocate of the Supreme Court; or

(b) has, for not less than ten years, helf judicial office in the territory of Bangladesh; or

(3) In this articles, "Supreme Court" includes 'a Court which at any time before the commencement of the Second Proclamation (Tenth Amendment) Order, 1977, exercised jurisdiction as a High Court or Supreme Court in the territory now forming part of Bangladesh.

96. Tenure of office of Judges (1) Subject to the other provisions of this article, a Judge shall hold office until he attains the age of [sixty-seven] years.

(2) A Judge shall not be removed from office except in accordance with the following provisions of this article.

(3) There shall be a Supreme Judicial Council, in this article referred to as the council, which shall consist of the Chief Justice of Bangladesh, and the two next senior Judges:

Provided that if, at any time, the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or other cause, the Judge who is next in seniority to those who are members of the Council shall act as such member.

(4) The function of the Council shall be-

(a) to prescribe a Code of Conduct to be observed by the Judges; and

(b) to inquire into the capacity or conduct of a Judge or of any other functionary who is not removable from office except in like manner as a Judge.

(5) Where, upon any information received from the Council or from any other source, the President has reason to apprehend that a Judge-

(a) may have ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity, or

(b) may have been guilty of gross misconduct, the President may direct the Council to inquire into the matter and report its finding.

(6) If, after making the inquiry, the Council reports to the President that in its opinion the Judge has ceased to be capable of properly performing the functions of his office or has been guilty of gross misconduct, the President shall, by order, remove the Judge from office.

(7) For the purpose of an inquiry this article, the Council shall regulate its procedure and shall have, in respect of issue and execution of processes, the same power as the Supreme Court.

(8) A Judge may resign his office by writing under his hand addressed to the President.

97. Temporary appointment of Chief Justice If the office of the Chief Justice becomes vacant, or if the President is satisfied that the Chief Justice is, on account of absence, illness, or any other cause, unable to perform the functions of his office, those functions shall, until some other person has entered upon that office, or until the Chief Justice has resumed his duties, as the case may be, be performed by the next most senior Judge of the Appellate Division.

98. Additional Supreme Court Judges Notwithstanding the provisions of article 94, if the President is satisfied that the number of the Judge of a division of the Supreme Court should be for the time being increased, the President may appoint one or more duly qualified person to be Additional Judges of that division for such period not exceeding two years as he may specify, or, if he thinks fit, may require a Judge of the High Court Division to sit in the Appellate Division for any temporary period as an ad hoc Judge and such Judge while so sitting shall exercise the same jurisdiction, powers and functions as a Judge of the Appellate Division.

Provided that nothing in this article shall prevent a person appointed as an Additional Judge from being appointed as a Judge under article 95 or as an Additional Judge for a further period under this article.

99. Disabilities of Judges (1) Except as provided in clause (2), a person who has held office as a Judge otherwise than as an Additional Judge shall not, after his retirement or removal therefrom, plead or act before any court or authority or hold any office or profit in the service of the Republic not being a judicial or quasi-judicial office [or the office of Chief Adviser or Adviser].

(2) A person who has held office as a Judge of the High Court Division may, after his retirement or removal therefrom, plead or act before the Appellate Division.

100. Seat of Supreme Court The permanent seat of the Supreme Court, shall be in the capital, but sessions of the High Court Division may be held at such other place or places as the Chief Justice may, with the approval of the President, from time to time appoint.

Article 100 as amended by the said Act runs thus:-

"100. Seat of Surpreme Court.-

(1) Subject to this article, the permanent seat of the Supreme Court shall be in the capital.

(2) The High Court Division and the Judges thereo shall sit at the permanent seat of the Supreme Court and at the seats of its permanent Benches.

(3) The High Court Division shall have a permanent Bench each at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet, and each permanent Bench shall have such Benches as the Chief Justice may determine from time to time.

(4) A permanent Bench shall consist of such number of Judges of the High Court Division as the Chief Justice may deem it necessary to nominate to that Bench from time to time and on such nomination the Judges shall be deemed to have been transferred to that Bench.

(5) The President shall, in consultation with the Chief Justice, assign the area in relation to which each permanent Bench shall have jurisdictions, powers and functions conferred or that may be conferred on the High Court Division by this Constitution or any other law; and the area not so assigned shall be the area in relation to which the HighCourt Division sitting at the permanent seat of the Supreme Court Shall have such jurisdictions, powers and functions.

(6) The Chef Justice shall make rules to provide for all incidental, supplenental or consequential matters relating to the permanent Benches."

101. Jueisdiction of High Court Division The High Court Division shall have such original, appeallate and other jurisdictions, powers and functions as are or may be conferred on it by this Constitution or any other law.

102. Powers of High Court Division to issue certain orders and directions, etc. (1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part III of this Constitution.

(2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law-

(a) on the application of any person aggrieved, make an order-

(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or

(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; or

(b) on the application of any person, make an order-

(i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) requiring a person holding or purporting to hold a public office to show under whatauthority he claims to hold that office.

(3) Notwithstanding anything contained in the foregoing clauses, the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.

(4) Whereon an application made under clause (1) or sub-clause (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of-

(a) prejudicing or interfering with any measure designed to implement any development programme, or any development work; or

(b) being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney-General has been given reasonable notice of the application and he (or an advocate authorised by him in that behalf) has been given an opportunity or being heard, and the High Court Division is satisfied that the interim order would not have the effect refered to in sub-clause (a) or sub-clause (b). (5) In this article, unless the context otherwise requires, "person" includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.

103. Jurisdiction of Appellate Division (1) The Appellate Division shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division.

(2) An appeal to the Appeallate Division from a judgment, decree, order or sentence of the High Court Division shall lie as of right where the High Court Division-

(a) certifies that the case involves a substantial question of law as to the interpretation of this constitution ; or

(b) has sentenced a person to death or to [imprisonment] for life, or

(c) has imposed punishment on a person for contempt of that division; and in such other cases as may be provided for by Act of Parliament.

(3) An appeal to the Appellate Division for a judgment, decree, order or sentence of the High Court Division in a case to which clause (2) does not apply shall lie only if the Appellate Division grants leave to appeal.

(4) Parliament may by law declare that the provisions of this article shall apply in relation to any other court or tribunal as they apply in relation to the High Court Division.

104. Issue and ececution of processis of Appellate Division The Appellate Division shall have power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it, including orders for the purpose of securing the attendance or any person or the discovery or production of any document.

105. Review of Judgments or orders by Appellate Division The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it.

106. Advisory jurisdiction of Supreme Court If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.

107. Rule making power of the Supreme Court (1) Subject to any law made by Parliament the Supreme Court may, with the approval of the President, make rules for regulating the practice and procedure of each division of the Supreme Court and of any court subordinate to it.

(2) The Supreme Court may delegate any of its functions under clause (1) and article 113 to a division of that Court or to one or more Judges.

(3) Subject to any rules made under this article the Chief Justice shall determine which Judge are to constitute any Bench of a division of the Supreme Court* * * * * and which Judges are to sit for any purpose.

(4) The Chief Justice may authorise the next most senior-Judge of either Division of the Supreme Court to exercise in that division any of the powers conferred by clause (3) or by rules made under this article.

108. Supreme Court as court of record The Supreme Court shall be a court of record and shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself.

109. Superintendence and control over courts The High Court shall have superintendence and control over all courts [and tribunals] subordinate to it.

110. Transfer of cases from subordinate courts to High Court Division If the High Court Division is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution, or on a point of general public importance, the determination of which in necessary for the disposal of the case, it shall withdraw the case from that court and may-

(a) either dispose of the case itself; or

(b) determine the question of law and return the case to the court from which it has been so withdrawn (or transfer it to another subordinate court) together with a copy of the judgement of the division on such question, and the court to which the case is so returned or trnasferred shall, on receipt thereof, proceed to dispose of the case in conformity with such judgement.

111. Binding effect of Supreme Court judgments The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.

112. Action in aid of Supreme Court Al authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court.

113. Staff of Supreme Court (1) Appointments of the staff of the Supreme Court shall be made by the Chief Justice or such other judge or officer of that Court as he may direct, and shall be made in accordance with rules made with the previous approval of the President by the Supreme Court.

(2) Subject to the provisions of any Act of Parliament the conditions of service of members of the staff of the Supreme Court shall be such as may be prescribed by rules made by that court.

CHAPTER II - SUBORDINATE COURTS

114. Establishment of subordinate courts There shall be in addition to the Supreme Court * * such courts subordinate thereto as may be established by law.

[115. Appointments to subordinate courts Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf.]

116. Control and discipline of subordinate courts The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the [President] [and shall be exercised by him in consultation with the Supreme Court].

[116A. Judicial officers to be independent in the exercise of their functions 117. Administrative tribunals (1) Notwithstanding anything hereinbefore contained, Parliament may be law establish one or more administrative tribunals to exercise jurisdiction in respect of matter relating to or arising out of-

(a) the terms and conditions of persons in the service of the Republic, including the matters provided for in Part IX and the award of penalties or punishment;

(b) the acquisition, administration, management and disposal of any property vested in or managed by the Government by or under any law, including the operation and management of, and service in any nationalised enterprise or statutory public authority;

[(c) any law to which clause (3) of article 102 applies.]

(2) Where any administrative tribunal is established under this article, no court shall entertain any proceedings or make any order in respect of any matter falling within the jurisdiction of such tribunal: Provided that Parliament may, by law, provide for appeals from, or the review of, decisions of any such tribunal.

Jurisdiction of Administrative Tribunals.

4. (1) An Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic [ or of any statutory public authority] in respect of the terms and conditions of his service including pension rights, or in respect of any action taken in relation to him as a person in the service of the Republic [or of any statutory public authority].

(2) A person in the service of the Republic [ or of any statutory public authority] may make an application to an Administrative Tribunal under sub-section (1), if he is aggrieved by any order or decision in respect of the terms and conditions of his service including pension rights or by any action taken in relation to him as a person in the service of the Republic [ or of any statutory public authority]:

Provided that no application in respect of an order, decision or action which can be set aside, varied or modified by a higher administrative authority under any law for the time being in force relating to the terms and conditions of the service of the Republic [ or of any statutory public authority] or the discipline of that service can be made to the Administrative Tribunal until such higher authority has taken a decision on the matter:

[ Provided further that, where no decision on an appeal or application for review in respect of an order, decision or action referred to in the preceding proviso has been taken by the higher administrative authority within a period of two months from the date on which the appeal or application was preferred or made, it shall, on the expiry of such period, be deemed, for the purpose of making an application to the Administrative Tribunals under this section, that such higher authority has disallowed the appeal of the application:]

Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six months from the date of making or taking of the order, decision or action concerned or making of the decision on the matter by the higher administrative authority, as the case may be.

(3) In this section “person in the service of the Republic [ or of any statutory public authority]” includes a person who is or has retired or is dismissed, removed or discharged from such service, but does not include a person in the defence services of Bangladesh[ or of the Bangladesh Rifles].

Jurisdiction of Administrative Appellate Tribunal.

6. (1) The Administrative Appellate Tribunal shall have jurisdiction to hear and determine appeals from any order or decision of an Administrative Tribunal.

(2) Any person aggrieved by an order or decision of an Administrative Tribunal may, within [three months] from the date of making of the order or decision, prefer an appeal to the Administrative Appellate Tribunal.

4[ (2A) Notwithstanding the provisions of sub-section (2), an appeal may be admitted after the period of three months specified in that sub-section but not later than six months, if the appellant satisfies the Administrative Appellate Tribunal that he had sufficient cause for not preferring the appeal within three months.]

(3) The Administrative Appellate Tribunal may, on appeal, confirm, set aside, vary or modify any order or decision of an Administrative Tribunal, and the decision of the Administrative appellate Tribunal in an appeal [ shall, subject to section 6A, be final].

Public interest litigation

The concept of public interest litigation has been originated in case of R vs. Thames Magistraties Court1, where Lord Justice Parker and Denning departed2, from the usual and traditional concept of Locus tandy3 as evolved from the Anglo-Saxon Jurisprudence.

The old concept of Locus standi is that only an aggrieved person can being a case before the court and only that person is aggrieved who is directly injured in money or property. It is not enough that he has a grievance or his one of the public who is complying in company with hundred or thousand of others. This old concept of Locus standi was laid down in 1980 by a distinguished judge, Loard Justice James, in the Sidebotham case4. Now this old possession has much been altered. There is at present, a much wider concept of Locus standi and there has been a remarkable series of cases in which private person (3rd parties) have come to the court and have been heard.

So, public interest litigation is a concept which recognizes maintainability of legal action by a 3rdparty5 (not the aggrieved) in unique situation6.

(1) (1957) 5 DLR 129.

(2) The departed shifted their position fro economic injury concept to non-economic injury concept of aggrieved person.

(3) Ordinarily Locus standi means Rights to sue.

(4) (1880) 14 C h d 458 at 465.

(5) 3rd party (not the aggrieved) means that is not directly injured in money and property. He is not the actual victim but a party (Plaintiff) to the case/ litigation.

(6) Unique situation means that situation where 3rd party acts as friend in good faith without any mala fide intention Pro-Bono-Publico, not for his own vested interest.

Causes of growth of public interest litigation:

(i) To ensure justice for poor aggrieved person;

(ii) To ensure justice for aggrieved person who is enable to go to court for reason other then poverty; (other reason are ignorance, social or other relative cases)

(iii) To established rule of law for all;

(iv) To ensure equality before law and equal protection of law for all.

If a plaintiff with a good case is turned a way only because he is not sufficiently affected personally, that means that some person is left frees to violate the law and that is contrary to public interest. In such case if the good case is accepted to ensure public interest that is public interest litigation.

WRIT

The term writ means the declared rule or order of the court or other appropriate authority. In other words writ means a written document by which one is summoned or required to do or refrain from doing something. Literally a writ means a written order.

In fine, writ is a judicial process by which any one is summoned as an offender, a legal instrument to enforce obedience to the orders and sentences of the court (Whardon’s law lexicon, 1976, page 1078).

Historical development of writ: Historically writ originated and developed in the UK under British legal system, where 5 different writ namely, Habeas corpus, Mandamus, Prohibition, Certiorari and Quowarranto where in existence. Initially all writ, were call prerogative writs, since the king issued writs through the court of kings bench on the court of chancery. Only the king or queen as the fountain of justice could issue writ, and they where conceived as being intimately connected with the rights of the crown.

In Britain now there is only one independent writ and it is Hebeas corpus. Since in Britain, the administration of justice (Miscellaneous provision) Acts 1933 and 1938 where passed whereby Mandamus, Prohibition, Certiorari and Quewarranto where abolished as writ, of those Mandamus, Prohibition and Certiorari have been turned in to orders and Quewarranto in to injunction.

In British period the Supreme Court was 1st established in 1774 at Kolkata in pursuance of the Regulating Act 1773. This court was 1st empowered to issue prerogative writ. The Indian Constitution adopted in 1949 gave both this Supreme Court and High court powers to issue writ and specific names of all writs where in corporate in both Articles of 32 (for the Supreme Court) and 226 (for the High Court). Under the 1956 constitution of Pakistan both the Supreme Court and High Court where given power to issue writ and specific name of all writs where mention in both the Articles of 22 (for the Supreme Court) and Article 170 (for the High Court). But it was 1962 Constitution of Pakistan where from the 1st time a changed was introduced in writ matters. The Supreme Court was not given any original writ jurisdiction. Only the High Court were empowered under Article 98 to issue writ, but the particular names of specific writs where not used in the wording of the Article 98.

Following in the instance of the Pakistan 1962 Constitution, the Constitution makers of the our country of Bangladesh also did not mention the specific names of various writ in Article 102 of the Constitution, rather the contents of each of the writs have been kept in self contained provision.

Reasons for incorporating the name of various writs in Bangladesh: Since no specific reasons have been stated by the constitution makers but it is assumed that for the following reason the names of various writs have not been used in Article 102 of the Bangladesh Constitution.

(i) In the United Kingdom only the writ of Habeas corpus in now effective and for 4 other writs have been turned into order/injunction. This concept/ reality might have influenced the 1962 of Pakistan. Following such intense, Bangladesh Constitution also did not incorporate the name of various writs in Article 102.

(ii) Specific name of various writs make them limited in their application. This is the most important reason behind the non-specification of names of various writs.

Writ order can be issued following grounds:-

(1) For enforcement of fundamental rights;

(2) Where there is no remedy in law;

(3) Where there is no other equally efficacious remedy is provided by law.

Limitation of the writ powers of the High Court Division to issued writs:-

(a) In case of Mandamus, Certiorari and prohibition the High Court Division has no authority to except any writ if filed by any person not aggrieved.

(b) The High Court Division is not able to entertain any writ petition which is related to a law concerning defense services or any disciplined force or Administrative tribunal

(c) Writ petition must be filed within a reasonable time, it not filed a reasonable time the High Court Division shall not allow the same.

(d) The High Court Division is not entertain any writ petition of there is efficacious remedy provided by law on the writ matter.

(e) The High Court Division is not competent to issue any order if same related to development work of the government without hearing of the government lawyer and attorney general.

********1st chief justice of writ: Justice Impey**********

Lecturer_ Hasan Talukder Sir

HINDU LAW

2011-11-22T11:48:00.000-08:00

MAINTENANCE

The right of maintenance arises from the concept of in undivided family. The head of such a family is bound to maintain its member. Their wives and their children. All members of a joint family whatever be their status and whatever be their age are entitled to maintenance.

It is a right to get the necessities which are reasonable. Section 3 of the Hindu adoptions and maintenance act 1956 defines maintenance. According to it maintenance includes-

(i) In all cases provision for food, clothing, residence, education and medical attendance and treatment.

(ii) In the cases of an unmarried daughter, also the reasonable expenses of and incident to her marriage.

Nature and extent of right of maintenance:

The right of maintenance is a personal right and can not be transferred nor can be attached. The right of maintenance can not be defeated by gift.

Under Hindu law the liability of a Hindu to maintain other arises in some cases from the mere relationship between the parties. Independently of the possession of any property. In other cases it depends altogether on the possession of property. The first liability called personal liability or absolute liability. And the second is limited liability.

Personal or absolute liability:

The obligation of a Hindu to maintain his relations is personal in character and arises from the very existence of the relation between the parties.

A Hindu was under a legal obligation to maintain his-

(i) Wife.

(ii) Minor sons.

(iii) Unmarried daughters, and

(iv) Aged person.

Thus the only persons who one under a personal obligation to maintain others are-

(1) The father, who is bound to maintain his minor sons and unmarried daughter.

(2) The husband who is bound to maintain his wife.

(3) The son who is bound to maintain his aged parents.

It is clear from what has been stated above that a Hindu is not-

(i) Adult sons.

(ii) Grand children.

(iii) His sister.

(iv) His sister in law.

The liability to maintain the above persons may arise from possession of property.

Limited liability: The liability consists of those persons whose claims rest upon property and passing of it on the death of the owner. Limited liability are-

(i) Liability of manager in a joint Hindu family liability dependent on possession of coparcenaries property.

(ii) Liability of heirs – liability, dependent on possession of inherited property.

(iii) Liability of government.

Who are the persons entitled to maintenance under Hindu law?

A Hindu is personally bound to maintain the following persons namely-

(i) His minor sons: Every Hindu is during his life time bound to maintain his minor sons whether legitimate. In Mitakshara family a father has personal obligation to maintain the minor sons. But he is under no such obligation to maintain his adult sons. In dayabhaga family he is not bound to maintain his sons either out of his separate or out of ancestral property.

(ii) His daughter: Every Hindu father is during his lifetime bound to maintain his minor daughter. An unmarried daughter is however entitled to be maintained by her father even after she has attained majority. So a father is bound to maintain his unmarried daughter and on the father death, the daughters are entitled to be maintained out of his estate. On the marriage she is entitled to be maintained by the husband. If a daughter is unable to obtain maintenance from her husband after his death from his family her father is under moral obligation to maintain her.

(iii) Wife: The wife right to maintenance belongs to the law relation to husband and wife. Thus a wife is entitled to be maintained by her husband, whether he passes property or not. The maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of possession by the husband of any property ancestral or self acquired. It is always to be borne in mind that a Hindu wife who leaves her husbands house for purposes of unchastity can not claim to be maintained or to be taken back. But a wife living apart from her husband for no improper purpose may at any time claimed to be maintained.

(iv) Aged person: The liability to maintain ones parent is clear both from shastrie Hindu as also the decided cases. So a person is personally bound to maintain his aged father and mother.

(v) Concubine: No mistress of a Hindu has any right of maintenance unless she was continuously and faithfully mistress until his death.

Maintenance of disqualified heir:

Where a son or other heir is excluded from inheritance by reason of disability he is entitled to Maintenance himself and his family out of the property which he would have inherited but for his disability.

Windows right of Maintenance:

If the husband dies then she will be maintain out of the husband’s estate. But if the husband left no estate then her father-in-law as he is morally bound to maintain. On the death of father-in-law she acquired a legal right to be maintained out of estate.

Example:

(a) A Hindu governed by the Mitakshara law dies leaving a widow and male issue. He leaves self-acquired property. The male issue wills inherited the property subject to the obligation to maintain the widow out of that property.

(b) A and his father F one members of a joint family governed by the Mitakshara law. A dies leaving a widow and F. on A’s death his undivided interest in the coparcenaries property lapse so as to enlarge the interest of F in the property A’s widow is entitled to be maintained by her father law F out of the coparcenary property quoed the interest of A in the property.

(c) A and B are husband and wife respectively A converts to other religion and becomes Muslim. Now B shall have the right to claim Maintenance and separate residence.

(1) Sister: A Hindu is under no personal obligation to maintain his sister, but if he inherits his father’s estate, he is bound to maintain her out of the estate, she being a person whom his father was legally bound to maintain as his daughter, provided that she is unmarried.

(2) Step-mother: A step son is under no personal obligation to maintain his step-mother but if he inherits his father estate he is bound to maintain her of the estate. She is being a person whom his father was legally bound to maintain as his wife.

(3) Mother-in-law: A dies leaving a widow B and a mother C. B is under no personal obligation to maintain her mother-in-law C. but if she inherits property from A she is bound to maintain C, she (C) being a person whom A was legally bound to maintain as his mother.

GIFT/WILL

Gift: ‘gift’ is defined by Hindu lawyers to be the creation of another person proprietary right after the extinction of one’s own proprietary right in the subject matter of the gift. So ‘gift’ consists in relinquishment (without consideration) of one’s own right (in property) and the creation of the right of another and the creation of the right of another mans right is the gift but not otherwise.

So Hindu law divides gift into four classes-

(i) Proper.

(ii) Improper.

(iii) Valid.

(iv) Invalid.

A proper gift consists of the donation of the donors own property, which is not prohibited.

Improper gift one either what can not the donors own or exclusive property or what is forbidden to be given a way.

A valid gift is defined to be what has been made by a person of sound mind and is not liable to resumption.

An invalid gift is defined to be that which is liable to resumption.

** What property may be disposed of by gift?

The following property may be validly being disposed of by gift:

(i) Separate or self-acquired property of a Hindu whether governed by Mitakshara or Dayabhaga law.

(ii) Stridhana i.e. women’s absolute property.

(iii) Importable property, unless prohibited by custom or the term of the tenure.

(iv) Interest of a coparcener under the Dayabhaga law.

(v) The whole of the ancestral property by the father under the Dayabhaga law.

(vi) A small portion of the property inherited by a Hindu widow may be gifted by her daughter or her son-in-law at the time of marriage.

(vii) Movable property inherited by a widow governed by law.

**Gift when complete?

A gift under Hindu law is not complete unless it is accompanied by delivery of possession even though it is made by a registered instrument. A gift under the Hindu law need not be writing.

The rule of Hindu law that delivery of possession is essential to validate a gift is abrogated.

Revocation of gift:

A gift once completed can not be revoked unless it was obtained by fraud or under influence.

Will: a will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Katyana says “what a man has promised, in death or in sickness if for religious purpose, must be given, and if he dies without giving it, his son shall doubtless be compelled to deliver it. And again, “after delivering what is due as a friendly gift (promised by the father) let the remainder be divided among the heirs”.

** Person capable of making will:

Every person of sound mind, not being a minor may dispose of his property by will. Under the pure Hindu law a coparcener could not validly bequeath his undivided interest in the joint family property. A minor can not make a will. It is to be noted that according to Hindu law the age of majority is the completion of 15 years.

** What property may be disposed of by will?

A Hindu could dispose of by will, the following property:

According to Mitakshara-

(i) Separate or self-acquired property.

(ii) A sale surviving coparcener may dispose of his property by will.

(iii) Saudajika stridhana, stridhana other than Saudayika but subject to husbands consent.

(iv) All stridhana during widowhood, and

(v) Importable property, unless prohibited by custom or the terms of the gromf.

But no coparcener, not even a father could dispose of by will his undivided coparcenaries interest, even if other coparceners consent to the disposition.

According to Dayabhaga-

The same as under Mitakshara law, with the following addition:-

(i) A coparcener may dispose of his share in the coparceners by will.

(ii) A father may dispose of all his property ancestral or self-acquired.

**Revocation and alteration in will:

A will is liable to be revoked or altered by the maker of it any time when he is competent to dispose of his property by will. But marriage does not revoke a will or codicil of a Hindu nor does the birth of a son subsequent to the execution of the will revoke it when he predeceases the testator.

** Will when void?

A will or any part of a will, the making of which has caused by fraud or coercion or by such importunacy as taken away the free agency of the testator, is void.

** What constitutes a valid will?

Where certain formalities are required by the statute for making a declaration regarding the intention then where those formalities are not complied with the document can not constitute a valid will.

From the definition formulated in section 2(ii) of the succession act, that a will is a declaration which possesses the following essential elements:

(i) It must be legal.

(ii) It must relate to disposition of property.

(iii) It must relate to the testators property or to the property over which he had the disposing power.

(iv) It must dispose of it so as to taken effect from the testators death, and

(v) It must be revocable at the testator’s pleasure.

So the essential characteristics of a will are-

(1) A will takes effect after the death of the test or. So it must be intended to come into effect after the death of the testator.

(2) It must relate to disposition of property. So the essential characteristic of a will is that the disposition contained in if after to take effect after death of the testator.

Will distinguish from gift:

It is to be noted that an early will were really deed of gift or settlement made by Hindu before their death. Although the notion of will is evolved out of gift.

A gift is a transfer of property that is voluntary gratuitous and absolute conferring immediate rights. So a gift is a present interest, relating to existing property and takes effect immediately which a will confers deferred interest and does not take effect until the death of the testator.

So in the case of will distributing the property of the testator to take effect on his death. On the other hand, in the case of a gift the provisions become operative immediately and a transfer in present is intended and comes into effect.

A will is revocable become no interest is intended to pass during the life time of the owner of the property. On the other hand a gift once completed can not be revoked. So in ascertaining whether a document is revocable or not.

So from above discussion it is clear that an instrument can not take effect as a will unless it has reference to the death of the person executing it.

Rights of women in Hindu laws & Stridhan

Personal rights of women in Hindu laws

Hinduism is considered as one of the most ancient religions in the world and that is why it is also called “Sanatan Dhormo”. Like all other religions it embraces all segments of human life including the rights, duties, liabilities of a woman. Though it is hard to find in particular the position of women in the ancient Hindu social system but it is clear from the old writings that with the end of the matriarchal system and introduction of patriarchy, women have become dependent on their male counterparts to a large extent. Since then Hindu women have been deprived of the right to property of their father and/or husband for survival. They remain dependent on parents during their childhood, on husband in youth and on children in old age. Therefore, for the betterment of the condition of Hindu women it is felt that Hindu family laws need to be reformed. Initiatives to such reforms always face opposition from a segment of Hindu community who are rigid in upholding “Sanatan Ain” (traditional customary law) because they are convinced that the laws originating in supposedly divine source cannot undergo a change. But it is noteworthy that our neighboring country India, where the Hindu law actually originated, has already introduced a lot of modifications and alterations in the family law system in order to make it compatible with the changing society.

Situation in Bangladesh

Hindu community is the second largest religious community in Bangladesh. According to 1991 census 11.5 per cent of the population of our country belong to the Hindu Community. Their social and family affairs all are very intensely controlled and influenced by their religious doctrine. In Bangladesh, Dayabhaga school is followed in Hindu Family Law.

Unfortunately the religious element in Hindu Family Law has been greatly exaggerated in our country. Very little has been done towards reformation of Hindu personal law as it is same to Muslim Personal Law in India. Therefore, Hindu women have no right in Bangladesh. They are deprived of their parent's\husband's property as well as right to divorce and right to adoption etc. The government has not yet considered amending the personal laws though it ensured equality of the citizens in the eye of the law by the constitution. The reason behind perhaps is that thinking any self-initiatives of amendment may give rise to communal tension in the country.

Comparative review

Inheritance: According to Bangladesh Law Hindu women only get a limited share. They inherit life interest in the property. There are five female Sapindas according to the Dayabagha law, namely the widow, the daughter, the mother, the father's mother and the mother of father's father. No other female relation is recognised as heir by the said school. Moreover a daughter cannot receive any property, even she cannot get life interest in the presence of son, grand son and great grand son. Although in neighbouring India laws in this regard have been updated since independence in 1947, in Bangladesh the pre-1947 laws are still prevailing. In India laws have been framed and amended that have established women's rights on the property of father and husband.

A wife's right to her husband's property is elaborately mentioned in Article 8 of Indian Succession Act. It is stated that if a Hindu man fails to distribute his property through a deed or testament, the inheritance will be determined based on Article 8 of the Hindu Inheritance Law and according to the list described in that law. In this way, a Hindu widow can demand the property of her husband under this law. Article 25 of Hindu Marriage Law states that a Hindu divorcee woman will receive subsistence allowance from her former husband. It is also stated that if the divorcee woman does not marry again, does not engage herself in adultery, and does not earn enough, she is entitled to receive subsistence allowance for the rest of her life from her former husband. Woman's limited estate has been abolished and whatever property has been or shall be inherited by a Hindu female will be or shall be her absolute property.

Marriage: According to Hindu social customs, Hindu marriages are solemnised through religious rituals. There is no marriage registration system for Hindus in Bangladesh. There is also no Hindu marriage law or Hindu marriage registrar in the country. So, if any Hindu woman suffers in the hands of her in-laws, she does not get legal help.

As per a 1946 law, Hindu women can file cases with courts to only regain the rights to conjugal life. Besides, the Hindu women can file cases under Family Court Ordinance 1985, Dowry Act 1980 and Women and Children Repression Act 2003. But these laws are too inadequate to protect the Hindu women's rights. But the situation is very different in neighboring India. There are laws in that country to protect the rights of Hindu women such as Widow Marriage Act 1856, Racial Inability Remission Act 1850, Child Marriage Prevention Act 1929 (Amended 1938), Earned Property Affairs Act 1930, Inheritance Act 1925 and Hindu Women's Rights to Lands Act 1937. Besides, new laws have been made in India after independence in 1947. These include Hindu Marriage Act 1955, Immature Children's Property Act 1956, Hindu Adoption and Maintenance Act 1956, Hindu Inheritance Act 1956 and Special Marriage Act 1960. It would be pertinent to mention the remarkable changes in ancient Hindu Law in India through the Hindu Marriage Act-1955:

1. Inter marriage between persons of different castes is not prohibited.

2. Monogamy which is essentially the voluntary union for life of one man with one woman to the exclusion of all others is now enforced by legislation.

3.Bigamy has been made punishable as an offence.

4.The conditions and requirements of a valid marriage have been considerably simplified.

5. Several matrimonial reliefs e.g., restitution of conjugal rights, judicial separation, nullity of marriage and divorce have been provided in this Act.

It is a matter of great regret that the Hindu women of our country fail to avail this kind of opportunity due to the lack of proper legislation.

Divorce: The concept of divorce is not recognised under the orthodox Hindu Law. Manu believed that the duty of a wife continues even after death. She can never have a second husband. The reason is that a marriage from the Hindu point of view creates an indissoluble tie between husband and wife. Unless divorce is allowed by the custom neither party to a marriage can divorce the other party. However, through the passing of Hindu Marriage Act 1955 in India some revolutionary changes have been introduced regarding marriage and divorce. After the passing of the Act the idea of marriage as an indissoluble union has been abolished and it is almost converted to a civil contract just like Muslim Law. The option of Divorce is the most significant part of this Act. Section 13(1) declares the right of divorce to both the parties. The grounds are as follows:

Adultery; treated the other party with cruelty; deserted the other party for a continuous period of not less two years immediately preceding the presentation of the petitioner; conversion to other religion; if one party becomes incurably of unsound mind or has been suffering continuously or intermittently from medical disorder of such a kind and extent that other party cannot reasonably be expected to live with the respondent.

Four grounds are available only to wife: Bigamy; Rape, sodomy; Non payment of maintenance decreed to the wife; Wife was under 15 when she was married and has repudiated the marriage before she is 18.

Unfortunately in Bangladesh any legislative enactment is yet to be introduced allowing a Hindu to divorce his/her spouse. Hindu women in Bangladesh are the worst sufferer due to this lack of provision of divorce. Very often they have to undergo physical and mental torture for dowry from their husband but can't divorce him since there is no such option in our country.

Adoption: Adoption is the transplantation of a son from the family in which he is born to another family where he is given by the natural parents by way of gift. The power of a Hindu female to adopt a son is very much restricted in Bangladesh. She can't adopt by herself but only with the consent of her husband. She has no right herself, she is deemed to act merely as an agent, or representative of her husband. A wife can but no other female can adopt. However, in India a woman enjoys a lot of rights conferred by the Hindu Adoption & Maintenance Act 1956. The Act has made the following changes in the law relating to adoption:

• A female may also be adopted(Sec:7&8)

• A virgin, divorcee, or widow is entitled to adopt and wife can also adopt in certain circumstances.(Sec:8)

• A male can adopt only with the consent of wife or wives, if any. (Sec:7)

• The father without the consent of mother can't give a child in adoption except in certain circumstances.(Sec:9)

• The ceremony of “Datta Homam” is not essential. (Sec:11)

From the above discussion it can be said that the Hindu women in Bangladesh are deprived of equal rights due to existence of the non-amended personal law which doesn't allow equal rights of women in different aspects of life even though constitutionally women are bestowed with equal right in social and political arena of Bangladesh. With the realisation of the concept that "man is not for law but law is for man", the world's civilizations has always brought about necessary changes in their respective laws and customs to adjust to the changing scenario. But in Ban-gladesh the scope of freedom of Hindu women is clogged by the crude provisions of Dayabhaga School that stands like a wall in the way of advancement and empowerment of Hindu women. This situation needs to be changed at any cost and there-fore following recommendations are suggested to bring a constructive change in the Hindu Family Law and thereby upheld the dignity of Hindu women:

• Polygamy should be prohibited through law.

• Marriage registration should be made compulsory along with the traditional ritual of marriage ceremony.

• Right to divorce of both man and woman should be ensured under equal condition.

• Maintenance should be given to the wife and children as per Guardianship and Ward Act,1898.

• Guardianship right should be entitled to both the parents.

• Adoption right should also be given to women.

• Finally, women should get equal share from the property of both father and husband.

Stridhan

The word Stridhan is derived from stre; woman and dhana property. It means literally women’s property.

According to Yajnavalakya-

‘What was given by her father, the mother , the husband , or received by her before the nuptial fire, or presented to her on her husband marriage to another wife and the rest (adya) is denominated Stridhan so that which is given by kindered as will as her marriage fee (Sulka) and anything bestowed after marriage’.

According to Gour-

The general quality of women’s property is limited character her restricted power of anealation and on her death it’s rebut ion to the time of the ast male owner.

It is necessary to know what kinds of properties were recognized as stridhan in the smrities that is to say by the rishis or sages of antiquity.

(i)Gifts made before the nuptial fire.

(ii)Gifts made at the bridal procession.

(iii)Gifts made in token of love.

(iv)Gift made by father.

(v)Gift made by the mother.

(vi)Gift made by the brother.

Distinction between Daya Bagha and Mitakshars Stridhan

Stridhan according to the mitakshara:

Stridhan as given by vijnaneswara in the mitakshara-that which was given by the father by the mother, by the husband or by a brother and that which was presented by the maternal uncles and the rest at the time of wedding before the nuptial fire, and a gift on a second marriage or gratuity on account of super session and as indicated by the ward adya property obtain by.

(i)Inheritance

(ii)Purchase

(iii)Partition

(iv)Seizure e.g. adverse possession

(v)Finding.

Stirdhan according to bangle school-

Jimutibahana believes that alone is stridhan with she has power to gift sale or used independently of her husbands control. So under the D.S. stridhans women’s property appears otherwise those by inheritance or partition over which she has full control and which after her death devolbs upon her own heirs. According to D.S. we can define in a positive sense and a negative sense in stridhan property.

(1)Positive sense: That all gifts from relation constitute stridhan except a gift of immoveable property made by the husband and that gifts from strangers also constitute stridhan if made before the nuptial fire or at the bridal procession.

(2)Negatively: That the following properties are not stridhan

(i) Property inherited by a woman.

(ii)Property obtained by her a partition

(iii)Gift from strangers except those made before the nuptial fire or at the bridal procession

(iv)Property acquired by her mechanical arts.

Difference: In Sheo Shankar vs. Devi Sabai in this case Stridhan said the Bengal school of lawyers has always limited the use of the term narrowly applying it exclusory or nearly exclusively to the kinds of woman’s property enumerated in the primitive seared tests.

The author of the Mitakshara and some other authors seems to apply the term broadly to every kind of property which a woman can possess from whatever source it may be derived.

Nature of Stridhan: Stridhan of every description belonging to woman posses upon her death the stridhan property will go her own heir. A woman has absolute control over her shridhan. She can dispossed of such property of her pleasure if not in all case during covertures in all cases during widowhood.

Woman is limited owner property which is not stridhan nor can she despots at her pleasure even during widowhood she is merely qualified owner.

Constituted stridhan

Several riches derived what is stridhan they are Manu, katyana, bishnu, yasbalka.

According to smites- the first is adhyagni gift made nupsel fire, explained by katyayana to mean gift made at the time of marriage before the fere which is the witness of the nuptial.

(2) Gifts made at the bridal procession that is says katyayana while the bride is being led from the residence at her parent to that of her husband (adhyagni).

(3) Gift made in token of at love that is says katyayana those made though affection by her father in law (pritedatta) and those made at the time of her making obeisance at the fest of elders (padavandanika).

(4) Gift made by father.

(5) Gift made by mother.

(6) Gift made by brother

Right of a woman over her stridhan:

(1) Right over stridhan during maidenhood there is no limitation to the power of her stridhan during maidenhood, whatever is the character of the stridhan, qualification attaching except the disqualification to her by reason of minority.

Hindu maiden is minor she can not alienate her property except thought her guardian nor can she dispose of it by will.

(2) Right over stridhan during covertures the power of a woman to disposses of her stridhan during covertures depends on the character of the stridhana for this purpose stridhana is divided into two classes.

(1) Saudayika or gift (2) other kinds of stridhan.

(3) Right over stridhana during widowhood.

A Hindu female has during widowhood absolute power of disposal over every kinds of stridhan, whether acquired, before or after her husband death.

Succession to stridhana

According to Dhyabagha school every female whether she is widow mother, sister, who succeeds as heirs to the property of a male takes only a limited state in the property inherited by her of upon her death the property passes to the next heirs of the diseased person from whom who got the property not to the own heir of the woman.

Inheritance & Partition under Hindu Law

Who are excluded from inheritance under Hindu Law?

The smritis declares that person labouringly under certain disabilities are excluded from inheritance. It has been stated that the exclusion from inheritance was based or upon the incapacity to perform sacrifices and religious ceremonies.

Manu states the following grounds of disqualifications “an important person an outcast, person born blind or deaf, insane, idiot, and the dumb as well as those deficient in any organ receive no share.

1. Physical and mantel defects: (i) Under the texts of Manu and Tajnavalka as interpreted by the carts the following defects, deformities and deceases exclude an her from inheritance:

(a) Blindness, deafness and dumbness, provided the defect is both congenital and incurable.

(b) Want of any limb or organ if congenital this includes the case of a person who is lamb or has no nose or langue. It also includes the case of congenital importance.

(c) Lunacy this need not be congenital or incurable to exist the heir from inheritance. It is enough if it exists at the time when the succession opens. Mare want of sound of mind or war ordinal, intelligence is not sufficient. It is sufficient if the person is and has been from his birth of such an unsound mind and imbecile mind as to be incapable of instruction or of discriminating between right and wrong.

(d) Idiocy provided it is complete and absolute idiocy is of course, congenital.

(e) Leprosy, when it is of such a type that it is incurable and render him unfit for social intercourse. It need not be congenital.

(f) Other incurable disease.

(ii) Under the Hindu inheritance removal of disabilities act 1928. No person other than a Person who is and his been from birth a hepatic or idiot, or share in joint family property by reason only of any disease, deformity, or physical or mental defect.

The act does not apply to any person governed by the dayabhaga school of Hindu law.

(2) Unchastely : A Hindu who is unchaste at the her husband’s death is not entitled to inherit to him, but once the husband estate has vested in her – which could only be if she was chaste at the time of her husband’s death it cannot be divested by her subsequent unchastely moniram vs. kerqs kolitani(1880). Similarly where the widow of a joint owner is given a widow’s estate on her husband’s death under a family arrangement, such an estate is not divested by her subsequent unchastely in the absence of any provision to that effect. (Name)

Under the mitakhara law the only female liable to exclusion from inheritance by reason of unchastely is the widow. (Tara vs. Krishna 1901)

But under the dayabhaga law the condition of chastity applies not only to the widow, but also to other female heirs, such as daughter and mother. (Ramnath vs. Durga 1879).

Unchastely excludes a female from inheriting toa male, but not to a female. It is therefore not a bar to inheriting stridhana, even according to the dayabhaga law. (Nogevidra vs. benoy1903)

(3) Change of religion and loss of caste: Change of religion and loss of caste which at one time were grounds of forfeiture of property and of exclusion from inheritance ceased to be so after the passing of the caste disabilities removal act 1850.

(4) Adoption of religious order: In a disqualification, were a person enters into religious order renouncing all worldly affairs his action is tantamount to civil death and it excludes him from inheritance.

(5) Murder: A murder even if not disqualified under Hindu law from succeeding to the estate of the person murdered is so disqualified upon the principle of justice, equity and good conscience. Further, no title to the estate of the person murdered can be claimed through the murdered. The result is that not only is the murdered excluded from inheritance but also his son or his sister or any other person claiming headship through him. He should be treated as non –existent when the succession opens on the death of his victim; he cannot be regarded as a fresh stock of descent.

(6) Disability as excluding females: The disabilities which exclude a male from inheritance also exclude a female from inheritance.

Effects of disability: Where an heir is disqualified, the next heir of the deceased succeeds as if the disqualified person were dead. The disqualified persons. Transmits no his heir.

(a)

S (insane) D

(b) A

B (bro) C (bro) (insane)

Here d is the nephew of the deceased and a nephew cannot inherit a brother is in existence.

Disqualification only personal: The disability is purely personal and does not extend to the legitimate issue of the disqualified heir. Nor does it extend, in cases governed by the Bombay school of Hindu law to his wife or widow but adopted sons of disqualified heir are not entitled to this heritable right

(a) A (not that the grandson succeed as the heir of his grandfather

A. he succeeds by own merits).

S (insane)

SSC

(b) A

B (insane) Daughter

Adopted son

Disability arising after succession: Property which has once vested in a person by inheritance is not divested by a subsequently supervening disability. (Deo kishan vs. Budh Prakash 1883).

Removal of disability after succession has opened: Where the disability is removed subsequently to the opening of the inheritance. The right to inheritance revives but not so as to divest the estate already vested in another person.

(a) A (the insanity is cured. S will succeed after widow

Death and not the brother).

S (insane) W B

(b) A (X is cured if B lefts no heir than X will succeed

As B’s heir and not other because B is a full

Owner).

X (insane) B

After born son of disqualified heir: Where after the succession has opened, a son is born to inherit so as to divest the estate already vested in another.

A (it’s the widow after her

Death nephew hire C will not

B (insane son) W Nephew be entitled).

Last full owner of the property or fresh stock of decent: Lest full owner of a property who hold the property. A dies living a widow, a mother, a brother or an uncle. When a dies his property can get his widow for a limited period, he can not sell this property she only can use this property for life time. After his death the property get A’s mother by blood relationship. Mother is a female heir so she can use this property for life time. So we can say that mother and widow is not a fresh stock of decent. But after death mother this property entitled brother. And if brother has any son so that brother is called last and full owner or fresh stock of descent.

Spes succession: The right of a person to succeed as heir on the death of a Hindu is a mere spes succession that is a bare chance of succession. A has a brother and uncle. Brother has a wife. It is true that if A died brother gets property nearest heir, if he was alive but in the life time of A brother can not take any property. All that he is entitled a bare chance of succession. But if the brother died before A’s death his wife can not get property. That property is entitled uncle but during A’s life time he can not get property. But he has a chance to get property after A’s death by heir. And this bare chance is called spes succession.

Partition

The word partition may be employed to mean either a division of or a division of passion or both. In short the term partition involves the severance of undivided interests in common property. So the rules relating to joint family or partition really form a part of the some branch of law.

Partition according to Mitakshara law, consists in ascertaining and defining the shares of the coparceners, in other words, it consists in a numerical division of the property by which the proportion of each coparcener in the property is fixed.

Partition according to Dayabhaga law, consists in splitting up of joint possession i.e. separating the share of the coparceners assigning to the coparceners specific partition of the property.

Partition how effected: Partition can be effected in the following ways-

(i) Partition by notice: A severance of joint status may be effected by serving a notice by a coparcener on the other coparceners including his intention to separate and enjoy the property in severalty or demanding partition of the property.

(ii) Partition by will: Partition may be effected by a coparcener by making a will containing a clear and unequivocal intimation to his coparceners of his desire to sever himself from the joint family or containing an ascertaining of his right to separate.

(iii) Marriage under special marriage act 1954: Marriage of a Hindu under the special marriage act eauses severance between him and the other members of the family.

(iv) Partition by agreement: The true test of partition being the intention of the member of the joint family to become separate owners, it follows that an agreement between the member of a joint family to hold and enjoy the property in certain defined shares as separate owner operates as partition.

(v) Partition by arbitration: An agreement between the members of a joint family where by they appoint an arbitrator to arbitrate and divide the property operates as a partition from the date thereof, the mere fact that no award has been made is no evidence of a renunciation of the intention to separate.

(vi) Partition by father: The father may also cause the severance of the sons without their consent. It is remnant of the ancient doctrine paternal power. The topic will be dealt with in detail under separate heading. Supreme Court, Hindu father under Mitakshara law can demand for partition along with his of the family. And thus can be bind the sons by partition.

(vii) Partition by suits: the institution of a suit for partition ipso fact effect severance of the joint family status and as such the mere intuition of such a suit effect immediate severance of joint status.

Effect of partition:

On partition of joint family, the joint status comes to an end and also the coparcenary is put to an end. The share of every branch of coparceners is also determined.

(a) Where the partition is general the undivided family as a unit comes to an end, where it is partial the member of the family who severed themselves from the unit loses the joint status which they had previously enjoyed as members of that particular group.

(b) Where partition takes place by marriage severance is effected between the persons marrying on the one hand and the rest of the family on the other.

(c) Partition automatically alters the character of the property pf the family. The coparcenaries of the family, the particular joint tenancy known to Hindu law- gives place to tenancy in common of the dividing member.

(d) But partition does not annul the family or other relation and does not disturb the rights incidental to such relation, such as the right to inherit.

What constitutes partition according to the Mitakshara and Dayabhaga school of Hindu law?

According to the true notion of a Mitakshara joint family, individual member of joint family, while it remains undivided, can predicate of the joint property that he that particular member has a certain definite share. So partition according to that law consists in ascertaining and defining the shares of the coparceners, in other word it consist in a numerical division of the property by which the property of each coparcener in the property by which the proportion of each coparcener in the property fixed.

According to dayabhaga law, on the other hand each coparcener even which the family remains undivided, a certain definite share in the joint property , of which he is the absolute owner the property is held by defined share though the possession is the joint possession of the while family. So partition according to Dayabhaga law, coparceners and assigning to the coparceners specific portion of the property.

According to the Mitakshara all that is necessary to constitute partition is a definite and unequivocal indication of intention by a member of the joint family to separate himself from the family and enjoy his share in severalty.

So partition according to Dayabhaga law constitutes – thus must be some thing mare than such an agreement. There must be a separation of the share and assignments to each coparcener of specific partition of the joint property.

So from the above discussion a partition according to Hindu law consists in separation the shares of the coparceners and assigning to the coparcener specific portion of the property.

Property available for partition:

What property is available for partition is to be determined by making provision-

(i) For paying joint family debts out of the joint family property.

(ii) For paying personal debts of the father not tainted with immorality.

(iii) For giving maintenance of dependent female member and disqualified heirs.

(iv) For funeral ceremonies of the widow and mother or the last male holder.

After giving all these an account must be taken or the joint family property in the hands of the manager and other member of the family according to the following rules-

(a) Since the institution of a suit for partition by a member of the joint family effect severance of the joint status of the family. A male member of the family who is then unmarried is not entitled to have a provision made on partition for his marriage expenses, although his marriage before the decree in the suit is made.

(b) In the case of unmarried daughter her right to maintenance and marriage expenses out of the joint family property is in lieu of a share on partition, provision should accordingly be made for her marriage expense in the decree.

(c) The rule in the case of an unmarried daughter that her marriage expenses come out of her own fathers share, applies to the expense of betrothal ceremonies of daughter.

(d) As regards the expenses of thread ceremonies of or the members of the family, has been held that the provision should be made for then on partition.

(e) For the legitimate marriage expenses of male member of the family and also of the daughter of male member of the family, the joint family property is liable as long as the family is joint. The father is always under obligation to get his daughter married. If the father neglects the mother may perform it and recover the expenses from the father.

Who are entitled to a share on partition?

(1) Every coparcener is entitled to a share upon partition.

(2) Every adult coparcener such as son, grand son and great-grand son is entitled to demand and sue for partition of the coparcener’s property.

(3) A suit on behalf of a minor coparcener can be brought for partition but the court should not pass a decree unless it is for the benefit of the minor.

(4) A son begotten at the time of partition and born after partition is entitled to have the partition re-opened if no share is reserved for him.

(5) The rights of a son begotten and born after partition are different according as the father has or has not reserved a share no himself.

(6) An adopted son in a partition suit between him and after born natural sons of his adopted father shares, equally as he would have done if have were a natural son, but he takes in Bengal one-third of the adoptive fathers estate.

(7) An illegitimate son of a Sudra does not acquire by birth any interest in his father’s estate. He can not therefore enforce a partition against his father in his life time.

(8) The position of absent coparcener is the same as the of minor. His right to receive a share extends to his descendants.

(9) A purchaser of the undivided interest of a coparcener of a sale in execution of a decree can demand partition.

(10) A wife can not herself demand a partition. If partition takes place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband.

(11) Persons who are disqualified by physical infirmity from inheriting one dis-entitled to a share on partition.

HUMAN RIGHTS

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Rights

A right means a claim advanced by an individual or a group of individuals enforceable in a court of law.

Hence it is to say that, “all rights are claim but all claims are not right.

Example: man is a national animal”.

It is also said that “all demand are want but all want are not demand”.

Example: A bigger who has a demand for a car but he can not afford it for want of wealth.

Right is an interest created by ordinary law by the constitution?

Example: Fundamental rights, Bill of rights.

Human right, the essential elements of human right, fundamental right

Human rights are these of legal and moral rights which are inherent by nature. These rights come with birth and are applicable all members of the human family irrespective of their six, calour, race, etc.

If we analyze this definition then we get three essential elements of human rights. These are given below:

(i) Universal inherent.

(ii) Inalienability.

(iii) Obligation of the state to ensure human rights to their citizen by providing well defined procedure.

Philosophy:

no discrimination can be made in respect of the enjoyment of human rights in the ground of sex, colour, religion or language. It concern with dignity and worth.

Human rights are 4 types:

(1) Civil rights

(2) Political rights

(3) Social and cultural rights

(4) Economic rights.

Fundamental rights:

When certain human rights are written down in a constitution and are protected by constitutional guaranties they are called Fundamental rights. They are called Fundamental rights in the sense that they are placed in the supreme or Fundamental law of the land which has a supreme sanctity over all other law of the land.

Difference between the human right and fundamental right

If we analyzed the definition than we get some difference, these are given below:

Fundamental rights Human rights

1. Fundamental rights are the subject of constitutional law. 1. Human rights are the subject of international law.

2. Fundamental rights are only applicable individual living in a state. 2. Human rights are applicable all members of the human family, in respect of sex, calour, etc.

3. Fundamental rights are judiciary enforceable by the court of law of a state. 3. Human rights are not judiciary enforceable by the court of law of a state.

4. Fundamental rights can be suspended during the proclamation of emergency. 4. The question of suspending Human rights due the proclamation of emergency does not at all arise.

5. Fundamental rights have territorial limitation. They have no application as Fundamental rights out side the territory of a

Particular case.

6. Fundamental rights are the part.

5. Human rights have no territorial limitations, they have universal application.

6. Human rights are the whole.

At last we can say that all Fundamental rights are Human rights, but all Human rights are not Fundamental rights.

Human right involved to a great extent, as a result of political absolutism

Human rights are those legal and moral rights which are inherent by nature. This right comes with birth and are applicable all members of the human family irrespective of their sex, colour, and race e.t.c.

Thus the provision of the magna carta, which was in fact a treaty of peace in June 1215 between king john of England and the wealthy land owners or barons in arms, were designed to ensure the prohibition of imposition of arbitrary taxation by the king without the assent, of the create council and arbitrary seizure of property by royal officials freedom of movement for merchants within the realm trial by jury e.t.c. the object of the magna carta was to protect the barons from inferior treatment by the government , subsequently many of the rights and grunts granted to them were extended to the common people. Thus the magna carta, which was in no sense a peoples charter and contained in addition to the preamble 63 clauses, subsequently become the charter of England liberties’ and at presents, it is considered as of the most important landmarks in the history of human rights and free government.

The struggle of the Englishman in the 1600s also resulted in two more very significant human rights documents. The petition of rights of 1628 and the bill of rights of 1689. The petition of rights which was adopted by the parliament in a legal form protected the individuals against arbitrary taxation or benevolence without parliamentary approval, arbitrary imprisonment, and despotic quartering troops in private home.

Whom the English revolution arises disposed of King James II in 1688. The parliament with a view to consolidate the results of the revolution and to prevent another re-emergence of arbitrary royal rule, adopted the Bill of rights in the form of a statue. This Bill of Rights is considered as one of the most important documents in English Constitutional history.

Thus the petition of Rights and the Bill of Rights placed on the king’s power and gave more power to the parliament and the courts.

The American revolution arise, triumphant over the English king who refused to allow the colonists to have a say in the governance of the colony and subjected them to unfair taxation without representation, adopted the Bill of Rights in Virginia on 12 June 1776.

The French revolution Aries , who were the middle class and peasant people, having disposed of the nobles and bing in July 1789 set forth with remarkable lucidity in the history’ declaration of rights of man and of the Citizen. It proclaimed that “men are born and remain free and equal in rights”.

The karabvasaks notion of 3 generation of Human Right

The context of Human Right is of 4 kinds:

(i) civil rights

(ii) political rights

(iii) economic rights

(iv) social and cultural rights

The first two kinds of rights i.e. civil and political rights are called the first generation of Human Rights.

The rest two kinds of rights i.e. economic, social and culture rights are called the 2ed generation of Human Rights.

Apart from these rights there is other kind of rights which is called the solidarity rights. It is known as 3rd generation of Human Rights. It is some time called the collective rights. Such as “peoples rights to self determination”.

The real history of Human Rights

Before the 2nd world war the concept of human rights was a matter within the domestic jurisdiction of the stages to grant or deny rights to their citizens.

During the pre-world war efforts for the protection of religious freedoms, protection for war prisoners and treatment wended, protection of minorities can not be described as universal. Because they were not general human rights to which all members of the human family entitled.

But in course of time as, result of the work of international, regional governmental and non governmental organization, human rights transcend national boundaries and become a international concern.

The charter of the UNO is the first international instrument in which the nations of the world community agreed to promote human rights and fundamental freedoms on an international level.

The universal declaration of human rights which was adopted by the general assembly of UNO on 10 December 1948, which contains a vast content of Human Rights. The declaration exercised a powerful influence through out the world both internationally and nationally and have inspired the preparation of international human rights instruments both within and outside the United Nations sustem.

Thus it can be said that the real history of human rights at the level of international law began during the later part 20th century.

The content of Human Rights

It may be mentioned here that the content of human rights – civil, political, economic, social and cultural rights, has broadly been defined at various stages of modern history. It is noticeable that the human rights mentioned in the English petition of rights and the Bill of Rights, as well in the Virginia Bill of Rights and the American declaration of independence and in the franc declaration of the rights of man are all civil and political rights. The civil and political rights are primarily associated with the English, American, and France “bourgeois” revolutions of the 17th and 18th centuries on the other hand economic, social, and cultural rights find its origins primarily in the socialist and Marxist revolutions of the early 20th century.

The movement against the slave trade

Slave trade and slavery are inconsistent to personal freedom and the dignity of man. For this reason there was the protected movement both at national and international levels to abolish slavetrade and slavery.

At the national level, for the first time the slave trade was abolish in Denmark 1807.

In Briten the parliament abolish slave trade in 1807.

But later on in 1833 Briten adopted of abolishing slavery.

In France slave trade was prohibited by Napoleon in 1814.

At the internation lave, for the first time USA and UK agree to abolish slave trade through a treaty in 1814.

In 1815 the five great powers the treaty of Vienna to abolish slavery.

The treaty of Vienna was followed by number of anti slavery treaties, agreement and conference.

Later on in 1841 the treaty of London was adopted to abolish slavery.

In 1842 USA and UK 1845 franc and Great Briten agree to co-operate in the central of slave trade. Antislavery treaties were also adopted in of African and Brussels.

In the Brussels agreement 16 nation agree to terminate the slave trade.

After the First World War the Great powers also at the peace conference fell the necessity to out law slavery.

The latest anti-slavery convention was signed by 49 nations under United Nations auspices in 1956.

Thus we say that the movement against the slave trade gradually transformed into a moment against slavery itself.

The concept of civilized nation as a need of protection of the international level

The pre world war ii international attempts to preserve certain rights of the groups of individuals was unorganized and can not be considered as universal in nature.

During the pre world war II attempts to secure religious freedom were efforts by members of one religion on behalf of their co-religionist else where. Protestant power generally tried to secure religious freedom for Protestants in etholic countries but not for Muslims, Buddhist or jeues.

To abolish slavetrad and slavery attempts were taken nationally and internationally. But most of the efforts which were taken internationally to abolish slavery were only in principle.

During the 19th century and early part of the 20th century there were same international attempts to ensure better protection for prisoners of war and treatment of wounded. But the attempts were almost isolated.

For the protection of minorities, peace treaties and minorities treaties were adopted. But the obligation under these treaties were imposed on the defeated states and the new or league of nation did not undertake similar obligation. Moreover the international protection of rights was only extended to the minorities, while the some rights if the victims belonged to the majority of the population, out of reach of the protection of the League of nation.

During the first part of the 20th century attempts were also taken to ensure the welfare of individual workers under the covenant of the League of Nations obligation were adopted for this purpose. ILO was also established under the League of Nations. But the failure of the League of Nations some what destroyed all these attempts.

This it appears that all the efforts during the pre world II for the protection of religious freedom, protection for war prisoners and treatment of ownded, protection of minorities and laborers can not be described as universal in nature.

Relation between war violation of Human Rights and peace and enter cement of Human Rights

Violation of Human Rights is a common matter during the war time. In no ages war was expected. Growing threat of was particularly necle or war treaded the peace and seceerity.

Dispossession and extermination of Jews and minorities arbitrary plaice change and seizer, imprisonment torture and execution with out public treat cause unanimous violation of Human Rights the gross violation at Human Rights due to illegal war, still threading the peace.

In fact World War II becomes a cru sate for Human Rights. Political leaders took measures for the international protection of Human Rights to ensure international peace.

Peace is a matter of Human Rights. When the demand of Human Rights arises as an international concern it was realized that peace and ………

The significance of the declaration

The real history of Human Rights at the international level began with the adoption of the universal declaration of Human Rights 1948. Even the UN charter did not contain any definition or catalogue of Human Rights and fundamental freedoms, the universal declaration of Human Rights introduce for the first time a full catalogue of Human Rights and fundamental freedom. It is the basic international statement of the inalienable and inviolable rights of all members of the human family.

The general assembly on 10th December 1948 proclaims the declaration as a common standard of achievement for all peoples and all nations.

(Next answer in the seat)

The jurisdictions of Human Rights committee

There are 3 jurisdiction of the Human Rights committee.

i) Supervisory jurisdiction under the provision of article UO of the International covenant of civil and political rights.

The state parties to the present covenant undertake to submit report on the measures they have adopted which give effect to the protected rights and on the progress made in the enjoyment of this rights.

All report shall be submitted to the secretary. General of the United nation, who shall transmit them to the committee for consideration.

The secretary general of the united nation may, after conclusion with the committee, transmit to the specialized agencies.

ii) To deal with state communication under the provision the Article 41-43 of international covenant of civil and political rights it shall make available its good efface to the state parties concerned with a view to reaching an amicable solutions of the matter which is satisfactory for them. If this result is not brought about the committee shall submit a report to the state parties concerned within 12 months. It is to be noted that this report has no binding affect whatever on the state parties.

The committee shall consist of fix persons acceptable to the states parties concerned.

iii) And to deal with individual communication under Article 1-6 of the first optional protocol, to the international covenant of civil and political rights.

The optional protocol to the international covenant of civil and political rights which was to enter into force after ratification by 10 countries. Provides that any state party can by ratification of the protocol, recognized the competence of the HRC to receive and consider communication from individuals subject to its jurisdiction, who claim to be victims of violation of any rights set forth in the covenant, the state concerned shall be enforce of the communication by written explanation and a statement of any remedies provided in the case.

The significance of UN charter concerning in respect of Human Rights

There are 2 theories concerning and significant the UN charter in respect of Human Rights.

The charter embodies nice direct reference to the concept of the Human Rights and fundamental freedoms in the preamble, Articles: 1(3), 8, 13(i) (b), 55(c), 56, 62(2), 68 and 76(c). That is why it is said that- the idea of the recognition and protection of Human Rights is a woven like a golden thread thought the entire charter as are of the principle objectives of the United Nation organization.

The responsibility for international implementation of the obligation of promoting and encouraging respect for Human Rights and fundamental freedoms for all is vested in the general assembly and under its authority in the Economic and Social council and trust ship council.

The charter of the united nation is the first international instrument in which the nation of the world community agreed to promote respect for Human Rights and fundamental freedoms on an international level. Under Auricle 56 , all members pledge themselves to take joint and separate action in co-operation with the organization for the achievement of the purposes set forth in article 55 to promote respect for and observance of Human Rights and fundamental freedoms for all without distinction as to race, sex, religious and language.

Although Human Rights constituted a theme which recurs again through out the charter and is singular in its predominance, the charter contains no definition, catalogue of Human Rights and fundamental freedoms.

The charter has little to say directly about Human Rights are scattered, thus we cryptic the term Human Rights appears infreignently, although in vital contexts.

Many have a promotional or programmatic character for they refer principally to the purposes or goals of the UN or to the competent of different UN organs. Encouraging respect for Human Right assisting in the realization of Human Rights promote…….universal respect for and observance of Human Rights not even a provision such as Article-56 which refers to undertakings of the UN, contains clear language of obligation. It notes only that states pledge themselves including the promotion of observance of Human Rights. Note also the prominence in these provisions of the nation of equal protection.

Pp118-119

International Human Rights in context law, polities, morels.

Henry j, Sterner ……and Philip abstain 1996.

The references of the Human Rights of UN charter are scattered

That is why it is said “The idea of the recognition and protection of Human Rights is woven like a golden thread throughout the entire charter as one of the principle objectives of the United Nation organization.

The charter of the United Nation is the first international instrument in which the nation of the world community agreed to promote Human Rights and fundamental freedoms on an international level.

UN shall promote respect for and observance of Human Rights and fundamental freedoms, for all without distinct is to race, sex, language religion.

Although Human Rights constitutes a theme which recurs again and again through out the charter and is singular in its predominance, that is why it is said that the reference of the Human Rights of UN charter one scattered.

The provision of the UN charter concerning Human Rights

Unlike the constitution of the League of Nations, which is the predecessor of the UN, the charter/ constitution of the newly established organization recognize that there could be no real and enduring peace among the nation of the world without of the individual who made up this nation. Although the proposals put forward by the delegation of Chile, Cuba, and panama (panama even urged the incorporation of bill of rights) to insure the protection of specified Human Rights by the UN was explicitly rejected at the charter embodies 9 direct reference of Human Rights and fundamental freedoms in the preamble, Article-1(3), Article-13(1)(b), Article-55e, Article-56, Article-62(2), Article-68, Article-8 and Article-76(c).

(Article 2 the international covenant on Economic, Social and Cultural Rights).

Article 6-15 of the ICESCR set forth 10 rights. Article 6-27 of the JCCPR provides 22 rights.

The provision of Article 2(7) of the UN charter

However there have been a number of obstacles to the realization of the full potential of this principle. The major impediment in establishing the obligatory nature of the Human Rights provision has always been Article 2(7) of the charter itself the so called “domestic jurisdiction clause”.

On the basis of this clause it has been frequently argued that the protection of Human Rights is a matter which is essentially within the domestic jurisdiction of the member state, and that there fore any obligation within that context is precluded by the application of Article 2(7). The whole question of Human Rights is bedeviled by the rule of the sovereign state and the idea of domestic jurisdiction.

However the conclusion that Article 2(7) in no manner modifies the pledge to respect Human Rights. It is only relevant in considering the power of the United Nation in enforcing the obligation. The only effect it could possible have is to limit the powers of the Economic and Social council, and of the general assembly together with other subsidiary bodies, in initialed studies, discussing situations and making recommendation in the field of Human Rights.

Paragraph 7 of article 2 refers only to such action on the part of the United Nation as amount to intervention. It does not rule out measures falling short of intervention. Intervention is a technical term of, on the whole unequivocal connotation.

Intervention is thus a predatory demand or an attempt at interference accompanied by enforcement or threat of enforcement in case of non-compliance. That interpretation of the term intervention complies an answer with the question of the limits of the action of the organ of the UN. Undertaking in order to encourage and promote the observance.

Human Rights

Preamble: we the peoples of the United Nations determined to save succeeding generation from the scourge of war, which twice in jour life time has brought untold sorrow to man kind, and

To reaffirm in fundamental Human Rights in the dignity and worth of the human person in the equal rights of men and woman and of nations large and small, and

To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

To promote social progress and letter standards of life in large freedom.

Art 1(3): To achieve international corporation in solving. International problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for Human Rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.

Art 8: The United Nations shall place no restriction on the eligibility of men and women to participate in any capacity and under conditions of equality in its principle and subsidiary organs.

Art(1b): Promotion international cooperation in the economic, social, cultural, educational and health fields and assisting in the realization of Human Rights and fundamental freedoms for all without distinction as to race, sex, language and religion.

Art 55(c): Universal respect for and observance of Human Rights

And fundamental freedoms for all without distinctions to race, sex, language or religion.

Art 56: All members pledge themselves to take joint and separate action in cooperation with the organization for the achievement of the purposes set forth in act 55.

Art 62(2): It may make recommendations for the purpose of promoting respect for and observance of Human Rights and fundamental freedoms for all.

Art 68: The economic and social council shall up set commission in economic and social fields and for the promotion of Human Rights and such other commission as may be required for the performance of its functions.

Art 76(c): To encourage respect for Human Rights and for fundamental freedoms for all without distinction as to race, sex, language or religious and to encourage recognition of the inter dependence of the peoples of the world.

The Universal declaration of Human Rights

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The jus cogens

It has acquired the status of jus cogens in international law. The principle of jus cogens the nation of peremptory norms of international law-is a norm accepted and recognized by the international community of states as a whole as a norms from which no derogation law that require the states to abstain norm the violation of Human Rights constitute jus cogens and all agreement made in contravention of these rule are considered illegal. Judge Mosler of the international court of justice took account of the dignity of the human person and decelerated that obligation to prospect Human Rights fall in the domain of jus cogens 83.

Philosophy of universal declaration of Human Rights

The universal declaration of Human Rights. Which consist of a preamble and 30 Article is based on the philosophy that “All human being are born free an equal in dignity and rights. They are endowers one another in a sprit of brotherhood. The declaration given pride of place and indeed of emphasis to basis principle of equality and non-discrimination as regards the enjoyment of all the rights and freedoms set forth in it. Every one is entitled to the rights without distinction of any kind. Such as race, colour, sex, language, religion, political and other opinion national or social origin, property birth or other status”.

International bill of rights

The international bill of Human Rights is initially consisting of the flowing instrument:-

(i) The universal declaration of Human Rights, 1948.

(ii) The international covenant on economic, social and cultural rights, 1966.

(iii) The international covenant on civil and political right, 1966.

(iv) Optional protocol to the international covenant of civil and political right, 1966.

Later on, on the year 1989 the general assembly adopted the 2nd protocol to the international covenant on civil and political rights aiming at the abolition on death penalty which is now also included in the international Bill of Rights.

The functions of Human Rights Committee

(I) Supervisory jurisdiction under the provision of Article 40 of the international Coventry civil and political rights.

(II) To deal with state communication (under the provision of Article 41-43) of international covenant of civil and political rights.

(III) And to deal with individual communication under Article 1-6 of the first optional protocol, to the international covenant of civil and political rights.

The co-documents of Human Rights

The flowing documents are co-documents of Human Rights –

(i) Universal declaration of Human Rights.

(ii) International covenant Economic, Social and Cultural rights.

(iii) International covenant on civil and political rights.

(iv) International convention on elimination of all forms of racial discrimination, 1963.

(v) The elimination…………………………against woman, 1979.

(vi) Convention against fortune and other eusol, in human regarding treatment or punishment, 1984.

(vii) Finally conventions on the rights of the child, 1989.

This are document which are consider as co-documents of Human Rights.

Two international covenants on Human Rights

The rights covered are not identical. The most important rights mentioned in both the covenants and not contained in the declaration is the rights to peoples, to self determination. Similarly, the international covenant of civil and political rights that are not listed in the declaration, among them the right of ethnic, religious or linguistics minorities to enjoy their own culture, to profess and practice their own religion and to use their own language.

On the other hand some rights are listed in the declaration such as rights to property, right to asylum, are not included among the rights recognized in the covenant.

The nature of obligation of member state under the covenant

The nature of the right and freedom set out in the two covenants is substantially different. This the Economic, Social and culture rights are formulated in general terms with an overall clauses providing for permissible limitations as determined by law in a democratic social and solely for general welfare purposes. The civil and political rights are defined in a more precise manner setting out in the instance of each right the specific permissible limitation necessary to protect national security, public order, public health or morals or the rights and freedom of others.

Although the two international covenants on Human Rights were adopted to put into binding legal form the rights proclaimed in the declaration, obligation of the ratifying states under the covenants are not identical.

The covenant on civil and political and immediate obligation on each of the state of the parties to “respect and ensure” the rights enumerated to all individuals within its territories and subject to its jurisdiction and to take necessary steps for their implementation by legislative authority in order to have such remedies determined and enforced (Article-2 the international covenant on civil and political rights)

On the other hand, the obligation assumed by the state parties under the international covenant on Economic, Social, Cultural rights is “undertakes to take steps, individually and through international assistance and co-operation……..to the maximum of its available resource, with a view to achieving progressively the full realization of the rights recognized in the …….covenant by all appropriate means, including particularly the adoption of legislative measures.

The functions of Human Rights committee

So secure the proper observance of its provisions. The international covenant of civil and political rights calls for the establishment of a Human Rights committee, an international organ composed of 18 members elected by the state parties to the covenant. It is the duty of the committee to study the reports to be submitted by the states on the measure they have adopted to give effect to the protected rights and on the progress made in the enjoyment of these rights such reports must be submitted through the secretary. General to the Human Rights committee on its request however the, committee submits the reports with its comments to all member states, it may also transmit them to the Economic, Social council and through the Secretary General to the specialized agencies. (Article 28-40 of the covenant of civil and political right).

It shall make available its good offices to the states parties concerned with a view to reaching an amicable solution of the matter which is satisfactory for them. If this result is not brought about, the committee shall submit a report to the state parties concerned within 12 months. It is to be noted that this report has no binding affect whatever on the state parties. (Article 41 civil and political rights).

The committee shall submit to the general assembly of the United Nation. Through the Economic and Social council, an annual report on its activities. (45)

The adopted of UN charter

The formation of the UN was the result of years of discussion between leaders of the allied powers, commencing with permitting between president D. Roosevelt and Mr. Winston Charcill on board the prince of wells in the Atlantic on 14 August 1941. As a result of their discussion they issued the Atlantic charter which formulated 4 freedoms.

(i) Freedoms of speech and expiration.

(ii) Freedoms of every person to worship God in his own way.

(iii) Freedom from want.

(iv) Freedom from fear.

Which was to be the basis of the world war order of the future.

5 months later in January 1942, 26 nations meeting in Washington, D. E pledge themselves to accept the aids of the Atlantic charter and for the first time use the term united nation coined by president pranklin D. Roosevelt in signing the declaration by the United Nation on January 1, 1942.

In the declaration the members state put on the quote that “ Complete victory over their enemas (it jar many, Italy, Japan) is essential to defend life, liberty, independence and religious freedom and preserved Human Rights and justices in their own land as well as in other land”.

Thus the United Nation egged in the midst of World War II. The primary object of which were the termination of the war through the unconditional surrender of the exist power and the establishment of an in doling and harmonious peace in the world community.

In 1943 the USA, the Soveat, United Kingdom, China the most power of the UN agreed in meeting in Mosco to set up a peace keeping purposes of the organization at which all were invited to join. The principles have not been accepted but it remained to work out the Machinery avoiding the rettfals that had weekend the League of the Nations. This work was done in October 1944 at a great wooded estate known as Dumbarton Oaks proposals the blueprint for the establishment of the new world organization, the United Nations which was Succeeded the League of Nations and prepared by the US, UK, USSR and China………indicated among the purposes of the organization that it should “promate respect for Human Rights and fundamental freedoms”.

Roosevelt Churchill met at Yalta in February 1945 and agreed upon their basic skill. They also decided to call on 25 April 1945 to deals the charter of the United Nation. This conference took place in sun Francesco and was attempts by 50 nations.

The purposes of the conference was to draft the charter of the new organization of peace of the objection of the UN as a whole were greatly enlarged and broadened revoking around a central idea, that peace can not be established in a fasion so long as oppression durable injustice and economic distress prevail in the world. And through to its purdiced a constitution for a world organization, a charter conceived of Yalta, modeled at Dumbarton oaks completed on June 26, 1945 in Sunfracisco and which come into force in 24 October 1945.

There are one hundred Eleven Articles in UN charter.

The effect of the provisions of the UN charter on member state, &

UN charter impose a positive obligation on the member state observe Human Rights within their own territory

United Nation charter is the multilateral treaty. It we take into the account article 55, 56 than we find UN charter imposes. Obligation to its member state. If is to be noted that UN charter is the multilateral treaty.

The operative term in article 56 is that war pledge. Pledge may adequately be defined as pledge a promise or agreement by which one binds himself to do forbear something. It has been suggested that the obligation is limited to merely the promotion of international co-operation in realization of the purposes describing Article in 55. However the conclusion is difficult to accept as the obligation extent beyond mere co-operation with the united nation. The Article states that the member states are not only obligated to act jointly and in co-operation with the organization but they have also assumed the duty to take separate action to promotion of the Human Rights.

The Legislative history of this provision demonstrative that the significant of the pledge to take. Separate action. The Article 56 originated as a proposal which read “All members pledge him selves to take joint and separate action in co-operation with the organization and with each other to achieve this purposes. Thus there was, initially a clearly stated, three foaled pledges to take joint action, separate action and co-operate with the organization. If is certainly amenable that Article 56 did not incorporation this original proposal. In any event the next proposal limited the pledge to that of mere co-operation jointly and severalty with the organization for the achievement of these purposes.

However, this proposal was rejected in favor of the final text of the Article, which reintroduced a three fouled pledge. Extending beyond mere co-operation. Admittedly this three foaled pledge one not as lucid nor as unequivocal as the original proposal but never the less there is a definite pledge to take separate action in promoting the Human Rights beyond the limits of mere co-operation.

The argument that the duty is limited to member state to respect Human Rights in this relationship with in its own citizen is also incapable of support in closer the sureties. It is difficult to complete how a nation world denies Human Rights with in his own jurisdiction and not in contravention of an obligation to promote respect for Human Rights in international sphere. Promotion of a principle cans certainly never beach hypocrisy. So the pledge to take separate action, the purposed set forth Article 55 must if their pledge is the have enemy carry with it a positive duty on the part of a member state to respect and observance of, Human Rights and fundamental freedoms and subject within boundaries.

Universal declaration of Human Rights adopted in 1948

The preparatory work for the adoption of the universal declaration of Human Rights is a remarkable event in the history of international co-operation and consensus. The text was drafted in two years between January 1947, when the commission on Human Rights first met and December 1948, when the general assembly adopted the universal declaration.

At the first instance the commission on Human Rights was established by the economic and social council on 16 December 1946 to frame an international bill of rights.

The commission first held its regular session on January 1947. After a general discussion it was decided that the bill should take the form of an assembly resolution. But the commission made how attempt at its first session to draft the bill of rights but it did appoint a committee consisting of its chairperson Mrs. Roosevelt, its vice chairman, D.C. Chang and its reporter, chortles malik. His committee of three held only one meeting and found self without a mandate but the committee did ask he director of the Human Rights division in the secretariat to prepare an outline of an international bill o Human Rights.

Before this could be done it was complained that the drafting committee of three did not provide for appropriate geographical distribution. In 24 march 1947 Mrs. Roosevelt appointed a new drafting committee of eight member with due rehard for geographical distribution.

The new drafting committee held its first meeting on June 1947. The drafting committee took the decision to prepare two documents, one in the form of a declaration of Human Rights, the other in the form of a covenant or convention which would define rights and limitation on their enjoyment.

The committee proponed and submitted to the commission the draft of the universal declaration of Human Rights and of an international covenant on Human Rights. The committee used the secretariat outline as the basis of its work. The commission then revised the draft declaration but did not have time to consider the covenant and commissions draft together with the covenant was sent up to the general assembly………………………………

The preparatory work for the adoption of the UDHR is a remarkable event in the history of international cooperation and consensus. The text was drafted in two years- between January 1947. When the commission on Human Rights first adopted the universal declaration.

At the first instance the commission on Human Rights was established by the Economic and Social council in 16th February 1946 to frame an international bill of rights.

The commission first held its regular session on January 1947. After a general discussion it was decided that the bill should take the form of an assembly resolution. But the commission made no attempt at its first session to draft the bill of rights. But it did appoint a committee consisting of its chairperson Mrs. Roosevelt its vice chairman, P.C. change rapproterur chartes Malik. This committee of three held only one meeting and found itself without a mandate but the committee did ask the director of the Human Rights division in the secretariat to prepare an out line of an international bill of Human Rights.

Before this could be done it was complained that the drafting committee of three did not provided for appropriate geographical distraction. In 24th march 1947, Mrs. Roosevelt appointed a new drafting committee of eight members with due regard for geographical distribution.

The new drafting committee held its first meeting on June 1947. The drafting committee took the decision to prepare two document, one the form of a declaration of Human Rights; the other in the form of a covenant or convention which would define rights and limitation on their enjoyment.

The committee prepared and submitted to the commission the draft of the universal declaration of Human Rights and of an international covenant on Human Rights. The committee used the secretariat outline as the basis of its work. The commission then revised the draft declaration but did not have time to consider the covenant and commission draft together with the covenant was sent up to the general assembly.

The general assembly referred the draft to its third committee which devoted eighty. One assenting and 168 formal amendments were proposal to it. Although the draft was routed though the ECOSOC the council as bush took no part in the drafting of the declaration.

There were many debates. Some Islamic states objected to the articles on equal marriage rights and on the rights to change religious believes which several western countries criticized the inclusion of economic, social, and cultural rights. On 10th December 1948, the UN general assembly unanimously adopted the universal declaration of Human Rights with abstention. Since then 10th December is celebrated every where world wide as Human Rights day.

The UN Organs

There are 6 organs in UN charter. These are given bellow-

(i) Security Council.

(ii) Economic and Social council.

(iii) The trust ship council.

(iv) General Assembly council.

(v) The international court of justice.

(vi) Secraterian.

There are 3 organs which have been given the rule in the charter to promote respect for and observance of Human Rights.

(1) General Assembly (Article 13(1)(b) of UN charter). Promotion international co-operation in the Economic, Social, Cultural, Educational health fields and assisting in the realization of Human Rights and fundamental freedoms for all without distinct as to race, sex, language and religion.

(2) Economic and Social Council (Article 62(2)). All members pledge themselves to take joint and separate action in co-operation with the organization for the achievement of the purposes set forth in article- 55.

(3) The trust ship council article-76(c). To encourage respect for Human Rights and fundamental freedoms for all without distinct as to race, sex, religious and language and to encourage religious of the interdependent of the peoples of the world.

Influence of declaration

The influence of the universal declaration of Human Rights is deeper and more lasting than any political document or various revolutions of the United Nations and in various national and international documents. Constitution municipal legislation and court decisions.

Influence on the resolution of the united nation

The general assembly and the Security Council invoked the universal declaration of Human Rights in their resolution and decisions.

In a resolution of 1949 adopted by the general assembly, called upon every nation to promote full freedom for the peaceful expression of political opposition, full opportunity for the exercise of religious freedom and full respect for all the other fundamental rights expressed in the UDHR.

The Security Council also invoked the UDHR in its decisions. On 4 December 1963 Security Council adapted a resolution in which requested the Govt of so 4th Africa to cease the discrimination and repressive measures which are contrary to the principles and purposes of the charter and the UDHR.

Influence on certain declarations:

The UDHR has been refereed to in some statutes agreement and declarations. The declaration on the granting of independence to colonial confirms and peoples which was adopted by the general assembly in 1960, provides that states shall observe faithfully and strictly the provisions of the universal declarations Human Rights. The assembly used similar language in the declaration on the elimination of all forms of racial discriminations 1963.

Influence on conventions:

International covenant on Economic, Social and Cultural rights and the international covenant on civil and political rights and international convection on the elimination of all forms of racial discrimination which were adopted by the general assembly are tuallyobased on the universal declaration of Human Rights.

The inter-American convention on Human Rights considers the principles set forth in the universal declaration of Human Rights.

Influence on national constitutions:

The principles of the declarations are reflected in the new constitutions of France and federal republic of Germany, India, Pakistan, Bangladesh, Libya, Syria, Uganda, Kenya, Sudan, Malaysia e.t.c. mobt of the civil and political rights set forth in the declaration are provided in part iii “fundamental rights” of the 1972 Bangladesh constitution.

Influence on municipal legislation:

The influence of UDHR on municipal legislations is found in all continents. In this context some recent examples are Canada, Bolivia, panama etc.

Influence on court decisions:

The universal declaration of Human Rights has influence many decisions of national courts. For example, in sej fejii vs. California it was observed by the court that the restrictions contained in the alien land law of California are in direct conflict with art 17 of the UDHR. In America federation of labors vs. American sash s door co. it was mentioned that art 20(2) of the universal declaration forbade anyone’s being compelled to belong to an association.

Significance of the UDHR:

Fundamental freedoms, It is the basic international statement of the inalienable and inviolable rights of all members of the human family.

The general assembly on 10th December, 1948 proclaims the declaration as a common standard of achievement for all peoples and all nations.

Mrs. Roosevelt, the then chairperson of the commission on Human Rights, predicting in the general assembly that the declaration “might well become the international magnacarta of all mankind.

In an address to the United Nations in 1979 pope john Paul II referred to the declaration as “the basis inspiration and cornerstone of the united nations”.

Charles malik, one of the drifters of the declaration and chairman of the 3rd committee, said, “The very substance of the declaration of Human Rights was contained in the charter and was governed by specific provisions. The declaration continued and in a way supplemented the charter”.

Professor Ren cassion of France, the person most responsible for the draft of the instrument also supports this view: “the declaration was an authoritative interpretation of the charter, of the highest order”. Thus the declaration which promised a better world is inseparably linked with the United Nations charter.

The director general of the UN office and under-secretary general for Human Rights Jan marten son said-“the declaration is nothing less than a monument to humankind”.

It was the first agreed and authentic catalogue of Human Rights, the purpose of which is to explain the contents of the Human Rights precisions of the UN charter.

The declaration sets forth the Human Rights and fundamental freedoms to which all men and women every where in the world are entitled without any discrimination. It brought a message of hope and belief in human dignity.