Indian maid gets relief from US Court

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An Indian maid, who had accused her former employer, an IFS officer, and her husband of harassment and "slavery", has received a favourable ruling from a US court, which approved her petition that she be awarded $ 1.5 million as compensation by the couple.In his order, US District Judge Victor Marrero "adopted in entirety" the report of US Magistrate Judge Frank Maas in which Maas had recommended that Shanti Gurung be paid 1.5 million dollars as compensation for the "barbaric treatment" and "emotional distress" Neena Malhotra and her husband Jogesh Malhotra caused her when she was employed as their domestic help for three years since 2006.

"The application of plaintiff Shanti Gurung for an award of damages is granted; accordingly, judgment is entered in favour of Gurung and against defendants Jogesh Malhotra and Neena Malhotra in an amount of $ 1,458,335 in accordance with the calculations and breakdown of that amount set forth in the report," Marrero said in his ruling on Tuesday. He also ordered that the case is now closed. Marrero said the Malhotras did not file any objections to Maas' report even though they had 14 days to do so. He said the court is not required to review any portion of a magistrate judge's report that is not the subject of an objection. After a thorough review of the documents submitted, "the Court concludes that the findings, reasoning and legal support for the recommendations made in the report are not clearly erroneous or contrary to law and are thus warranted.

"Accordingly... the court adopts the report's factual and legal analyses and determinations, as well as its substantive recommendations in their entirety as the Court's ruling as to Gurung's application for an award of damages," Marrero said. In his recommendation filed on February 21, Maas had said Gurung should be awarded the compensation as she was a victim of "outrageous and shocking conduct." Gurung was employed by the Malhotras when Neena was serving as a counsellor at the Consulate General of India in Manhattan. Gurung had alleged that she was treated like a slave by the Malhotras and forced to work long hours without adequate compensation.

Marrero's ruling came just days after the Delhi High Court restrained Gurung from pursuing her lawsuit in the US. The Delhi court had also accepted the argument that Neena is a diplomat in the services of the Government of India and was sent in official capacity to the US and thus enjoys sovereign immunity.Any order passed by a court there would tantamount to interfering with the right of the Indian government to determine terms and conditions of employment of its diplomatic officers abroad, Justice Kailash Gambhir had ruled.

A message left with Gurung's lawyer Mitchell Karlan seeking comment on the development in the case was not immediately answered. Neena, an Indian Foreign Service officer, served as a Press and Culture Counsellor at the Indian Consulate in New York from 2006-2009. When she came to New York in 2006, Neena brought Gurung from India to serve as her house maid. In July 2010, Gurung filed a complaint before the US court accusing Malhotras of ill-treating her.

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Divorced woman can’t be evicted from home:SC

A woman cannot be evicted from the matrimonial home after divorce except through procedure established by law, as there is no provision for her automatic eviction, the Supreme Court has ruled. A bench of justice GS Singhvi and justice SD Mukhopadhyay, in a judgment, said though a woman may not have a legal right to continue in the house of the ex-husband, yet the latter cannot forcibly evict her.

The court gave the ruling while upholding an appeal filed by Ranjit Kaur challenging the decisions of the Punjab and Haryana HC which had upheld her eviction from the house of a disputed property upon a decree of divorce granted to the husband Major Harmohinder Singh, an army officer.

“...even though in the decree of divorce, the appellant has not been given a right of residence and her occupation of the suit property can be treated as unauthorised, respondent No 1 (Singh) cannot evict her except after following the procedure established by law.

“The material placed on record shows that the appellant had entered into the property as the wife of respondent No. 1.

Therefore, even though, after passing of the decree of the divorce she may not have a legal right to continue to remain in possession of the suit property, respondent No. 1 cannot be given liberty to forcibly evict her,” the bench said.

The apex court, however, rejected the plea of the woman that Singh should be restrained from alienating the suit property (house).

The couple was staying at the disputed property in SAS Nagar, Mohali. They were married in 1978. A decree of divorce was granted on October 4, 2001, in favour of the husband who had filed a petition under Section 13 of the Hindu Marriage Act, 1955, for dissolution of marriage on the ground of cruelty.

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It should allow some people to become less poor

On Thursday the Constitutional Court heard a case involving this balance. Slightly surprisingly, several of the judges appeared to be standing up for the rights of the landlord. Yes really. STEPHEN GROOTES was in the public gallery.

We at the Daily Maverick have a proud interest in the creation of capital. We like to discuss, think about and examine how wealth can be created. We believe, strongly, that part of the foundation to this process is property rights. This is why we have such a strong interest in the balance between the rights of landlords, and the rights of tenants. I, personally, believe that this balance is currently heavily tilted towards tenants, in a way that is destructive to the rental market. As a result, there is not enough low-cost housing.

It's a case that seems to directly pit the right of a landlord to seek profit against the right of a tenant to adequate housing. The landlord is Aengus Lifestyle Properties. It owns, among other things, some buildings in the Joburg CBD. The applicants are a group of around 17 (I say "around" because there's a bit of confusion around how many people are actually involved in this case) people who have been renting their flats for between four and 17 years. The landlord decided it needed to make more money from its properties. Thus it terminated the renters' leases, using the termination clause in the contract it had with them. The renters went to court, lost, went to Bloemfontein, lost, and then had their day on Constitution Hill.

On the face of it, it would seem incredibly heartless to turf people out simply to make more money. Of course, it's far more complicated than that. For a start, there are agreements in place. Then there's the fact that it would be impossible to ever improve the inner city if no one is ever allowed to be evicted. And then there's the immortal South African question (for us filthy capitalists, at any rate), do the rich have rights too?

The judges were strongly engaged in his. The advocate for the renters, Daniel Berger, had a torrid morning. At one point it seemed almost like the legal equivalent of WWF tag-teaming, as judges would line up to punch through questions. Zac Yacoob wanted to know whether a clause to terminate the contract was specified in the contract or not. Then he demanded whether the ground on which the landlord relies (i.e.to cancel the contract simply to put up the rent) was specified. Berger replied that “there can't simply be a termination clause, and thus I'm using the right to terminate the contract because there's a termination clause", when the real motivation is to put up the rent by 100%.

The ground for termination must be because I want to increase the rent by 100%, he argued. Oh really, said Yacoob, "why is the motive relevant, where does the legislature say that the motive is relevant?” And while Berger was still chewing on that, he followed up with the sucker punch, what if the "termination occurred purely without the landlord disclosing the ground"? Berger responded with "we say the landlord can be called upon to disclose his reasons.”

It was clear Berger's clients had a lot to do to convince the judges here. But the main issue was still to come. It was Judge Edwin Cameron, along with Deputy Chief Justice Dikgang Moseneke who kept returning to it. They are very worried about what they call the "social cost" of these problems, and who should pay for it. In other words, why, they asked repeatedly, should the landlord pay to keep these people in this accommodation? It is the landlord who would suffer if these people were allowed to remain in these properties, and paying these (lower than they otherwise would be) rents.

This is a sticky point, because at the moment, there is another case, relating to exactly this issue, which is still being adjudicated by the court. It has already heard argument in the case of Blue Moonlight Properties vs. the City of Joburg, which relates to who should pay to accommodate people in these situations. If you haven't already guessed, Blue Moonlight Properties thinks it should be the City of Joburg; the City of Joburg would like to demur on that particular responsibility. As a result, these two cases are really interlinked.

But the judges weren't finished yet. There's some explanation required here, but stay with us, because it relates directly to South Africa as a developing country.

The Inner City Resources Centre is acting as an Amicus Curie in the case, and made an argument pretty much relating to why the tenants should be allowed to stay on in the properties. Their lawyer, Heidi Barnes, mentioned the situation in Germany and Canada, where, she said, there is no way these people would be evicted, simply because of the disproportionate effect this would have. They would be homeless so a company could make more money. But, said Cameron, we are different to those countries. Is there not, he asked, a case to answer about the exercise of judicial function? In Germany and Canada, there is 101% housing stock, they are affluent countries; in a state with 100% housing stock, an eviction would be impermissible. But in a developing country, with a developmental economic model, might it not be important for social enterprises to generate low cost housing through capital accumulation through the rental market?

It seems to me, that at least one interpretation of what he is saying is that we want our people to be rich. To do that, we need to allow them to accumulate capital, and to do that, we need to allow them to have rental properties that they safely let out. And for all of that to work, we need to allow them to evict people, or in this case, terminate a lease agreement.

It seems that Cameron is pointing to the difference in approach between India and China. In India, because it's very difficult to evict people, the inner city slums of the 1950's are the inner city slums of today. In China, where rights don't matter quite so much, the inner city slums of the 1950's are now the gleaming shrines to their own type of capitalism.

It reminds me also of a previous judgment, relating to property rights that was rendered in the South Gauteng High Court by Judge Nigel Willis. Containing the immortal phrase that "if the Constitutional Court thinks all property is theft it should tell us so", it was a very angry critique of how important it is for a country's development that landlords have the right to evict.

This ruling is part of a series of cases relating to property rights, and the rights of landlords and tenants that are going through our courts. It's no accident that so many of them seem to come from the Joburg CBD – the nexus of urban immigration, poverty and inner city decay. So it's not just the ruling in this case that will matter. But the court could deliver a boost for the rights of landlords here. In doing so, it will mean hardship for the tenants. But it should also mean development in inner Joburg. And capital accumulation. In other words, it should allow some people to become less poor than they are now. It will generate wealth, rather than simply redistributing it. DM

Disclaimer: Grootes was once a landlord. It ended catastrophically. He is currently a renter. For now at any rate.

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Plan reforms with consensus: Manmohan

Recently Prime Minister Manmohan Singh indicated the government's plan to introduce labour reforms with “consensus.” This statement assumes significance as the labour unrest in Maruti Suzuki India Limited plants near Delhi had forced the management to declare two days shutdown. Dr. Singh, affirmed the government's commitment to do “everything possible to ensure good industry-labour relations.” He said:“Recently we have witnessed some incidents of industrial unrest. This is a matter of serious concern to me and I believe we need to address this issue with alacrity and sincerity. “Workers and management had a symbiotic relationship and both sides should work in a spirit of collaboration and cooperation, without losing sight of the overall national objective of progress.

“There is a view that the labour laws are sometimes felt to be too rigid and are a constraint on our growth impulses… There was also a contrary view that the labour legislation needed to protect the interests of workers, particularly in the unorganised and the contract labour sectors. Clearly, there were areas where there was a need to strike a balance between the needs of a growing economy and the interests of working people.”

The Prime Minister said the Center was aware that there were many areas of labour legislation that might require reform to encourage business and enterprise. “We will move ahead only in those areas where a broad consensus for reform is built and will ensure that the interests of our workers are fully protected in doing so.” He also highlighted the government's plans to increase skill development programmes and expand the workers' health insurance scheme such as the Rashtriya Swasthya Bima Yojana, which was already benefiting about 25 million labourers.

Labour and Employment Minister Mallikarjun Kharge said the objectives of maximum utilisation of resources, quantum increase in productivity and efficiency could not be achieved unless the managements, workers and trade unions came together and helped evolve an ethos and work culture. His Ministry had constituted a National Social Security Board for recommending formulation of Social Security Schemes.

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Govt. Intends to extend all benefits to contract workers as permanent workers

The Labour Ministry is making efforts to extend all benefits available to permanent workers to contract workers, keeping in mind the interests of all stakeholders. This was stated by the Union Labour and Employment Minister, Mr Mallikarjun Kharge, at the Standing Labour Committee meeting here on Monday.

Mr Kharge was responding to the demand of trade unions to amend the Contract Labour Act, 1970 to provide for automatic absorption of contract labour in the event of prohibition of employment of contract labour and opposition by employers' organisations.

On the issue of trade union ‘recognition', especially in the backdrop of the Maruti unrest, Mr Kharge said “the present system of verification (of trade unions) like secret ballot, check off, etc., needs to be closely examined further for evolving an improved system which is more transparent and brings out the proper representation.”

The Minister also hinted at the need to have a National Labour Code, as suggested by the Arjun Sengupta Committee, to lay down “a floor of substantive labour rights or standards such as minimum wages, maximum hours of work, minimum standards of safety and health at workplace and so on.”

The tripartite meeting was attended by representatives from Central ministries, State Labour Ministers, industry bodies, employers' organisations and trade unions.

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No separate action from centre for Compulsory registration of marriages

The process for compulsory registration of marriages in the wake of the Supreme Court order of 2006 is being worked out by State Governments and Union Territories and hence, no separate action by the Central Government is considered necessary, Salman Khurshid, Union Minister of Law & Justice has said.

The Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denomination should be made compulsorily registrable in their respective States where such marriages are solemnized.

The minister in written reply to a question in the Rajya Sabha this week said that “it is not correct to say that the process of registration of marriages is cumbersome. The process for compulsory registration of marriage is worked out by respective State Governments and the Union Territory Administrations by making suitable legislation/ rules or by amending existing legislation/ rules on the basis of the situation obtained in their respective territories to make the process simple and easier. Hence, no separate action by the Central Government is considered necessary.”

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Judge Population Ratio in India

The Law Commission in its 120th Report recommended that the strength of judges per one million population may be increased from 10.5 to 50 judges per million population. Giving this information in written reply to a question in the Rajya Sabha, Shri Salman Khurshid, Minister of Law & Justice, said that the judge strength of the High Courts is reviewed every three years. The data received from the High Courts for the triennial review of the judge strength of the High Courts are analyzed in accordance with the guidelines fixed for the increase of the strength which is based on number of cases filed and disposed.

Shri Khurshid further informed the House that with regard to subordinate judiciary, the Supreme Court, in its judgment of 21st March, 2002, in All India Judges’ Association & Ors Vs. Union of India & Ors, directed the States that an increase in the Judge strength from the existing 10.5 or 13 per 10 lakh people to 50 judges per 10 lakh people should be effected and implemented within a period of five years. The Central Government filed a modification petition in the Supreme Court praying that the increase in judge strength in the Union Territories for which Central Government is administratively responsible be allowed based on workload and pendency of cases.

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Will the Lokpal be tenth time lucky?

The Lokpal bill is into its ninth life but the eight previous governments that tried to deliver it failed to show similar cat-like survival skills.

For over four decades, the bill has repeatedly been introduced only to be forgotten and then resurrected again. But almost all the governments that tried to give it birth died prematurely themselves — some within months — and the two that completed their terms got waist-deep in problems and failed to return.

The Congress was the first to try. On May 1, 1968, then home minister Y.B. Chavan introduced the bill in the Lok Sabha and it was referred to a joint select committee that completed its work in a year. The House passed the bill on August 20, 1969.

But before the legislation could travel the few yards to the Rajya Sabha, the fourth Lok Sabha was dissolved following the Congress’s split into Congress () and Congress (R). Nothing was heard of the bill for the next two years and, despite its passage in the Lok Sabha, it lapsed.

On August 2, 1971, Ram Niwas Mirdha, junior personnel minister in the Indira Gandhi ministry, brought it back to the Lok Sabha. But within weeks, India had gone to war with Pakistan.

Thereafter, Indira’s term was dogged by problems, from food shortage and price rise to bandhs and corruption, culminating in the June 1975 court judgment against her election that led to the Emergency. So the Lokpal bill was the last thing on her mind. Her government lasted its term but lost the 1977 election.

The victorious Janata Party government took up the bill. Charan Singh, home minister in the Morarji Desai cabinet, placed it in the House on July 23, 1977. But the Janata Party’s innings ended in just over two years.

The fourth to introduce the bill — on August 25, 1985 — was Rajiv Gandhi’s law minister A.K. Sen. Rajiv’s decision to bring it within a year of securing a stupendous majority appeared to be in sync with his promise to root out corruption.

But the bill was again referred to a standing committee and forgotten as the Bofors cloud gathered steam and the Ram temple agitation got off the blocks. Rajiv never returned to power.

The V.P. Singh government, high on its pre-poll promise of bringing the corrupt to justice, introduced the bill in its first Parliament session. The government didn’t last even a year.

P.V. Narasimha Rao didn’t touch the bill for the five years he ruled but his successor H.D. Deve Gowda, Prime Minister of the United Front coalition, introduced it on September 10, 1996. By April next year, he was gone. The Front itself was ousted later in the year.

On July 23, 1998, Atal Bihari Vajpayee’s National Democratic Alliance resurrected what by then was already looking like a doomed legislation. It followed the familiar route to a standing committee and, before anything substantive could be done, Vajpayee had lost his majority in April 1999 — in less than a year and by a single vote.

Vajpayee returned but the bill had to wait until 2001, when deputy personnel minister Vasundhara Raje placed it in Parliament on July 9. The House panel that vetted it was headed by Pranab Mukherjee, who completed the job in record time.

However, the NDA government sat on the bill. Then, buoyed by its Assembly poll victories, it called a snap general election and lost.

UPA-I didn’t once think of the bill. Now UPA-II has revived it and suffered its gravest political crisis. When a revised draft comes up, perhaps in winter, will the Lokpal be tenth time lucky?

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Can OCD a ground for divorce?

Meena  a welleducated woman, married to Raju an executive with a multinational company in 1997. The couple has an 11-year-old daughter. Meena looks like a healthy and happy person. But her husband and daughter have experiences otherwise. Raju has moved the family court seeking divorce from Meena saying she's suffering from obsessive compulsive disorder (OCD), a mental illness or a psychiatric disorder.

Raju, in his plea, has contended that in the initial years of marriage he noticed that Meena had a habit of doing certain things repetitively. "She will either keep washing her hands or repeatedly check if the main door is closed. I used to ignore it, but her behaviour became more obsessive after our daughter was born in 2000. Once she started going to school, Meena used to doubt if she really goes to school or not; she does her homework or not. She used to punish the child for petty reasons," states Raju.

But a family court has raised this pertinent question that can the OCD a ground for divorce. Last week, when Raju's petition came up for hearing, the judge posed some questions: "Is this illness incurable? Show how will it affect your matrimonial prospects?" The court also questioned if a person suffering from OCD can live a normal life. "What if her illness is cured after divorce is granted?" asked the judge.

Raju's lawyer argued: "He waited for two years after finding out that she is suffering from OCD. She hasn't shown any improvement to treatment for over ten years now. Even the child is getting affected because of the mother's behaviour."

The plea, which was filed in 2001, said Meena's symptoms aggravated from 2000, after the birth of their daughter. She was treated in two hospitals and also one in the United Kingdom but hasn't shown any improvement. She is now staying with her parents in Kerala and is under treatment.

Meena's lawyer countered that his client is responding to treatment and the illness is curable. "Just because a mother is giving some minor punishment to the child, can she be called mentally ill? Or can it be a ground to seek divorce?" he asked.


A prominent women lawyer said: "The law generally says that some incurable disease can be a ground for divorce. But the case should be supported by medical reports which say that the disorder or the illness is incurable in nature. There are chances that certain illnesses which are incurable today can be cured tomorrow with the help of advanced medical facilities. The judgment in a case should be passed on the present status of the case and not on its future prospects."

A professor of psychiatry, National Institute of Mental Health and Neurosciences ( Nimhans), had this to say: "Diagnosis cannot answer all questions. A good proportion of these patients show much improvement and we say they are cured." He explained that in a similar proportion, response to treatment would be satisfactory thus enabling a person to perform most of the essential roles. "However a small proportion would be disabled even after considerable treatment and the disability of performing matrimonial duties can vary from case to case," he added.


A family court,while hearing the case last week, asked if obsessive compulsive disorder could be a ground for seeking divorce. "Is this illness incurable? Show how will it affect your matrimonial prospects? What if her illness is cured after divorce is granted?" asked the judge.

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Horoscope is admissible but a weak evidence: SC

NEW DELHI: Horoscope is an admissible piece of evidence to prove a person's date of birth though it has low reliability, the Supreme Court has held.

A bench of justices Mukundakam Sharma and Anil R Dave passing the judgement, however, said the burden of proving the authenticity of such horoscope would lie "heavily" on the person relying on it.

"We reiterate the proposition of law laid down by this court in the earlier decisions that horoscope is a very weak piece of material to prove age of a person and that heavy onus lies on a person who wants to press it into service to prove its authenticity," the bench said.

The court passed the judgement on a petition filed by Registrar General of the Madras High Court against M Manickam, a lower court judge, who has been litigating since 1993 for change in his date of birth from November 24, 1950 to March 19, 1947.

He had made his first application before the Registrar General in November 1993 contending that due to the wrong entry of his date of birth in the service records, he would retire from his service 3 years, 8 months and 5 days before his actual date of superannuation.

The apex court said that since horoscope is a primary document on which reliance is placed, "therefore, the same is required to be looked into very carefully and minutely so as to ascertain the genuineness of the claim."

The bench rejected Manickam's plea for change in his date of birth noting that even though Manickam claimed the horoscopes were made by his father at the time of their birth between 1939 and '53, but an address and its pin code printed on the pad showed the note pad was manufactured only after 1972 when the system of pin code was introduced.

"We are of a firm opinion that respondent (Manickam) has failed to discharge his onus in proving the authenticity of the horoscope on which reliance is placed," it said.

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Centre on path to ammend Sec 498A of IPC

Following hundreds of applications from men peeved over the alleged misuse of Section 498A of Indian Penal Code (IPC) meant to protect women, the judicial cell of Union home ministry has issued an advisory to state governments “to take effective measures for prevention of misuse of the legal provision” and also referred the matter to the Law Commission “to study the usage of the provision to suggest amendment, if any”.

Section 498A of the IPC provides protection to married women against harassment from their husbands and in-laws. Under the provision, police can arrest any member of a woman’s in-laws’ family against whom she makes an allegation of harassment. The Section reads, “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

The Union home ministry has conveyed the development in a letter to Ahmedabad-based men’s rights activist Dashrath Devda, who has been fighting for an amendment in Section 498A of the IPC.

Devda heads Akhil Bhartiya Patni Atyachar Virodhi Sangh (All India Federation Against Atrocities by Wives), an organisation based in Ahmedabad. He had unsuccessfully staged a hunger strike in Delhi against the alleged pro-women laws, including Section 498A of the IPC. To press his demand, he had also filed a public interest litigation in the HC, which dismissed the plea and fined him while calling his petition frivolous. Subsequently, Devda submitted a memorandum in this regard to the authorities in Delhi. As a reply, he has now received the letter from the judicial cell of the Union home ministry. The letter reads, “An advisory has been issued to be state governments by this Ministry to take effective measures for prevention of misuse of Section 498A of the IPC. The matter has also been referred to Law Commission of India to study the usage of Section 498A of IPC and suggest amendments, if any, to the provision.”
Sources in the Union home ministry said they receive a number of applications with reference to the alleged misuse of section 498A of IPC. On the basis of 200-250 such applications, they had referred the matter to the Law Commission in 2009, they said, adding that in 2010, the ministry again referred the matter to the Law Commission for a comprehensive study of the grievances and to suggest amendment, if any. Subsequently, the Law Commission had demanded related data from the state governments.

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