The Modes or Process of Alternative Dispute Resolution in Artharin Adalat Ain.

Government brings necessary change into the Code of Civil Procedure and also in Artharin Adalat Ain, 2003 for money loan recovery. After new Amendment of the Act in 2010 this Act provides mediation as single mode of alternative disputes resolution. Chapter 5 and section 22 to 25, 38, 44A provide provisions of mediation in Artharin Adalat Ain 2003.

Process of Alternative Dispute Resolution in Artharin Adalat Ain:

Mediation is compulsory and it begins after defendant files written statement. This Act adopted court annexed ADR mechanism both pre-trial and post-trial stages in a suit. The stages are-

1.      Mediation after filing written statement;   Sec- 22

2.      Mediation before pronouncement of judgment ;  Sec- 23

3.      Mediation at execution stage of the suit; and   Sec-38

4.      Mediation at appellate or revision stage.  Sec- 44A

After filing written statement the Court by adjourning the hearing shall order for mediation to settle their dispute, or if all the contesting party through application to the Court wishes to settle their dispute through mediation, the Court shall so mediate.  Sec- 22(1)

Appointment of Mediator:

Parties by their mutual agreement or their lawyer with their consent may appoint following person as mediator-

a.       Another lawyer who is nor engaged with any of the parties;

b.      Retired judge;

c.       Retired financial institutions or bank officers; or

d.      Other persons deem to be suitable for this act.

But if a person holding office of profit in service of republic shall not be eligible for appointment as mediator.   Sec-22(2)

The parties to the dispute by their mutual agreement determine the charge or fees of mediator. Sec- 22(3)

After appointment of mediator the parties must inform the name of mediator to the Court within 10 days. If the fails to appoint within this time the Court shall appoint mediator. The mediation shall be concluded within 60 days from the day on which the court so informed about the appointment of mediator. If they fails to conclude the dispute, the court in its own motion or joint prayer by the parties can extended time not exceeding 30 days.  Sec-22(4)

If the result is compromise of the dispute, the term of such agreement shall be send to the Court, bearing the signature or thumb impression of the parties as executants. Sec-22(6)

After that the Court shall pronounced a decree according to Order 23 of Code of Civil Procedure, 1908. Sec-22(7)

When the mediation fails to produce any compromise, the Court shall proceed with the hearing of the suit from the stage where the decision of mediation was taken. Sec-22(8)

The proceeding of mediation under this section shall be confidential and it will be inadmissible in any subsequent proceedings.  Sec-22(9)

No appeal or revision shall lie against any order or decree passed by the Court in pursuance of settlement of disputes under this section. Sec-22(11)

Mediation in Post-trail stages:

If the mediation process fails under subsection 22, the both parties with the permission of Court may apply for mediation again at any stage before pronouncement of judgment under section 23.

Mediation at execution stage of the suit:

According to sec 38 at the stage of execution of decree the parties may settle  the dispute through mediation by inform to the Court.

Problem on Pusishment of Culpable homicide under sec 304 of Penal Code.

“ক” তাহার স্ত্রীর সহিত যৌনসঙ্গমরত অবস্থায় “খ” কে দেখে তাকে মেরে ফেললো। এক্ষেত্রে “ক” কে কি অপরাধী এবং হত্যাকারী হিসাবে সাবস্ত্য করা হবে ?

কোন স্বামী যখন তার স্ত্রীর সহিতযৌন্সঙ্গমে লিপ্ত দেখিয়া কাহাকেও মারে ফেলে, তখন তা খুন হয় না। উহাতে যে অপরাধ হয়, তাহা খুন নয়; ইহা অপরাধ জনক প্রাণহানি (culpable homicide) হিসাবে বিবেচ্য হবে। এক্ষেত্রে স্বামী penal code এর ৩০৪ নং ধারা অনুযায়ী দোষী সাবস্ত্য হবে। Whoever commit culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also liable to fine.

“যখন কোন স্বামী তাহার স্ত্রীকে অবৈধ সঙ্গমে লিপ্ত দেখিয়া তাহাকে মারিয়া ফেলে তখন সে মানুষের প্রাণহানির দায়ে দোষী হয়, খুনের দায়ে নয়। এই আইন সেক্ষেত্রে প্রযোজ্য হবে না, যেক্ষেত্রে সংশিলষ্ট স্ত্রী লোকটি আসামীর স্ত্রী নয়।”

The nature, essential condition of a adoption and who may adopt under Hindu law.

The shastric Hindu Law looked at adoption more as a sacrament than secular acts. Some judges think that the object of adoption is two folds:-

i.                    To secure one’s performance of one’s funeral rites and,

ii.                  To preserve the continuance of one’s lineage.

Hindus believed that one who died without having a son would go to hell called poota, and it was only a son who called save the father from going to potta. This was one of the reasons to be get a son.

In the Hindu shastras, it was said that the adoption son should be a reflection of the natural son. This guaranteed protection and care for the adopted son. He was not merely adoptive parents, but all relation on the parental and maternal side in the adoptive family also came into existence. This means he cannot merely the daughter was natural born or adopted. It is interest to know that while Muslims and Parsi personal laws do not recognize the concept of adoption, Hindu law, from the most ancient times, had elaborate provision on adoption. Even the ancient Greek and Roman legal system recognized adoption.

Currently, the adoption under Hindu law is governed by the Hindu adoption and Maintenance Act, 1956. This Act applies only to Hindus not to Muslims. It came into effect from 21^st December, 1956. The un-codified Hindu law recognized twelve kinds of sons, of which five kinds were adopted sons. Under the codified law, a daughter could not be adopted. The Hindu Adoption and Maintenance Act, 1956, recognized adoption to both a son and a daughter. This Act has also brought about certain change in the earlier un-codified Hindu law of adoption and maintenance. This Act extends to the whole of India, except the state of Jammu and Kashmir.

ESSENTIAL OF VALID ADOPTION

The following may be considered as essential of a valid adoption:

The adoption should be legally capable of taking in adoption:-

A male Hindu of sound mind, who has attained the age of discretion, may take a son in adoption provided he has no son, grand-son, or great-grand-son, natural or adopted living.

A wife cannot adopt, while her husband is alive except with his express consent. A widowed can adopt under an authority, express or implied from her husband.

The person giving in adoption must be legally competent to do so:-

The only people who are authorized to give a boy in adoption are his father and mother. The mother cannot give a boy in adoption while the father is living without his express permission. But she can do so if the father enters a religious under or becomes incapable of giving consent.

The adoptee should be lawfully capable of being taken in adoption:-

The person to be adopted must be a male and belong to the identical caste of the adopting father. A boy, whose mother (had she been unmarried) could not be lawfully given in marriage with the adoptive father, cannot be adopted.

Actual giving and taking:-

Actual giving and taking is absolutely necessary even in case of sudras. The physical act of performing the giving and taking may be delegated to another by the parents.

Dattahoma:-

High Courts differed on the point whether dattahoma is necessary for a valid adoption. It is now generally agreed that dattahoma is necessary but it may be performed later on even after the death of adoptive father or the natural father of the boy

Who may adopt?

Capacity of Male:-

Any male Hindu, who is of sound mind and is not a minor, has the capacity to taken a son or daughter in adoption, provided that if he has a wife living, he shall not adopt except with the consent of his wife, unless his wife has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. If a person has more than wife living at the time of adoption the consent of all the wives is unnecessary for any of the reason specified in the preceding provision.

Capacity of Female:-

Any female Hindu—

Who is sound mind;

Who is not a minor, and

Who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounce the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.

Where the woman is married it is the husband who has the right to take in adoption with the consent of the wife. The person giving a child in adoption has the capacity to do so:

1.      No person except the father or mother or guardian of the child shall have the capacity to give the child in adoption.

2.      The father alone if he is alive shall have the right to give in adoption, but such right shall not be exercised except with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.

3.      The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.

Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is unknown the guardian of the child may give the child in adoption with the previous permission of the court. The court while granting permission shall be satisfied that the adoption is for the welfare of the child and the due consideration will be given to the wishes of the child having regard for the age and understanding of the child. 

The person can be adopted-

No person can be adopted unless,

a.       He or she is a Hindu.

b.      He or she has not already been adopted,

c.       He or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption.

d.      He or she has not completed the age of fifteen years unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

The objects and development of Limitation Act 1908.

___________________________________________

Law is the back-bone for the standing of the peaceful and live society. It lives and changes with the change in the society. The mortality is the fate of every life. The nature and its laws follow it without break and deviations. So there is no good for the society keep the disputes or litigation to be live for very long period. The law of limitation is founded on the Latin maxim “Interest republicae ut sit finis litium” , which means that it is for the general welfare that a period be put to litigation.

In England before James Statute of 1523 there was no specific Law of Limitation.

o   1523 A.D. James Statute introduced in England for the Law of Limitation.

o   1793 A.D. From 1793 A.D. Regulations were passed from time to time for fixing the limitation for institution of action; but

o   1858 A.D. Before 1858 two systems of Law of Limitation were adopted by the Courts in India. In Presidency towns viz. Calcutta, Madras and Bombay the English Law was followed; whereas in Moffusills courts administered the law as laid down by the Regulations which passed from time to time.

o   1859 A.D. The first attempt to introduce a uniform law of limitation applicable alike to Courts established by Royal Charter or other Courts by the Limitation Act 1859 (XIV of 1859), which come into force in 1862.

o   1908 A.D. Finally, the question of consolidating and amending the law relating to limitation for Suits, Appeals and Applications was taken up and the Limitation Act of 1908 (IX of 1908) was passed.

Analysis of the Limitation Act 1908:

The of 1908 consist 30 sections and 183 articles. The sections deals with general principles applicable to extension of time whether by reason of disability or by acknowledgement. The sections are divided into five parts-

1.      Part I is preliminary

2.      Part II is section 3 to 11, deals with limitation of suits, appeals and applications.

3.      Part III is section 12 to 25 deals with computation of period of limitation.

4.      Part IV is section 26 to 28 deals with acquisition of ownership by possession

5.      Part V is section 29 to 30 contains saving provisions.

And of the Articles, article 1 to 149 relates to suit, article 150 to 157 relate to appeal and article 158 to 183 relates to the application.

Objects of the law of limitations:

The object of the Act is “to quiet long possession and to extinguish stale demands”. It requires that there should be an end of litigation. The law of limitation proceed upon the presumption that claims are extinguished or ought to be held extinguished whenever they are not litigated within prescribed period. In the words of John Voet, controversies are restricted to a fixed period of time lest they become immortal while men are mortal.

The object of the law of limitation is not to crate or define cause of action but simply to prescribe the period within which existing right can be enforced in Courts of law. It based upon the principles that the law aids the diligent and not the indolent; that a man who has negligently slept over his right for an undue length of time will not be allowed to litigate in respect of them; and a person who has been in the enjoyment of property, or of a right, or of an immunity from a demand by another, for a period of them which the law has prescribed, will be allowed to enjoy that property and will not be harassed by unexpected litigation. The operation of the law of limitation and also prescription has been explained by Lord Plunket in a striking metaphor. He stated that time holds in on hand a scythe and in the other, a hour-glass. The scythe moves down the evidence of our rights while the hour-glass measures the period which renders that evidence superfluous. Commenting on this a learned author observes that the metaphor could have been completed by adding, so far as the state is concerned, that the frame work of the hour-glass will certainly decay, the glass be broken and the sand escape.