The State Industrial & Investment Corporation Of Maharashtra Limited (SICOM)

SICOM is a premier financial institution located in Mumbai, dedicated to catalyzing development in the Industry, Services and Infrastructure sectors in India by providing tailor-made financial solutions and advisory services to entrepreneurs, companies in the private and public sector and Government bodies.

SICOM Limited was established in 1966, by the Govt. of Maharashtra as a 100% state owned company, with the objective of industrialising the backward areas of the State of Maharashtra. In the 38 years since its inception, SICOM, as the State Industrial Development Corporation (SIDC) for Maharashtra, has offered a range of services and extended Long Term Financial Assistance of more than Rs. 4,000 crores to over 3,000 units. The total investment catalysed in the backward areas of the state was to the tune of Rs. 85,000 cores.

Nature of operations :
In the past, term lending was the predominant activity for SICOM, with other services having a smaller share in terms of percentage of the total income. Over the last five years the product-mix has been diversified and SICOM now offers a range of services, which include fund based , as well as non-fund-based services. Fund based activities include providing of financial assistance by way of long term loans, leasing, short and medium term loans, and bills discounting. The above activities are supplemented by fee based activities like corporate advisory services, mergers, amalgamations and restructuring. SICOM's infrastructure advisory services include feasibility study, preparation of bid documents, loan syndication and assisting in identification of joint venture partners. Even though SICOM has diversified its product range, industrial financing continues to be the focus area of operation for SICOM.

SICOM hopes to play a major role for the IT enterprise that are being set up in the State of Maharashtra. SICOM has realised that IT entrepreneurs have special needs and SICOM has designed new products which cater to their specific needs. The customized term loan packages, that are project oriented or cash flow related are offered to these companies.

SICOM has launched a venture fund with participation from SIDBI and UWB. The fund is managed by SICOM and is targeted to provide equity support to companies in Information Technology sector. The fund operates from Pune. Information about the fund can he had from it's website www.sicomindia.com.

SICOM's website www.sicomindia.com provides more information about SICOM and nature of its operations. There is also a special section on “buy and sell opportunities” wherein entrepreneurs who are interested in seeking or offering industrial properties, sick units / mergers / acquisitions / partnership opportunities get a chance to interact on-line, this facility is found very useful by investors.

To international and domestic entrepreneurs, SICOM provides value added advice in setting up projects in Maharashtra. This includes advice on
i) Project Location ii) Govt. Clearances iii) Assistance in Legal Documentation
iv) Arranging for infrastructure v) Funds syndication.

SICOM has been a profit making organization and has played a prominent role in the Industrial Development in the State of Maharashtra. SICOM is the nodal agency for NRI investment and FDI in Maharashtra. Further, SICOM successfully pioneered and operated the Package Scheme of Incentives of GoM. In 1995, following Government of India's policies of economic liberalisation and privatisation of PSUs, Govt. of Maharashtra privatized SICOM. Accordingly, 51% of GoM's stake in SICOM was divested, making SICOM the first and only SIDC so far, where Government has reduced its holding to below 50%.

Initially, SICOM adopted the Growth Centre strategy whereby select centres were identified viz. Nashik, Aurangabad, Nagpur, Roha, Butibori, etc. and then concentrated efforts were made to provide support services to nurture the industrialists setting up projects in these Growth Centres. It was believed that once the wheel of industrial development was set in motion, social development would follow. Over the years, one has seen this strategy bearing fruits. SICOM played an important role in implementing the Govt. of Maharashtra's specially designed policy offering incentives to the industrialists investing in backward area.

SICOM today
SICOM has five regional presence in Delhi, Nagpur, Pune, Aurangabad and Nashik. SICOM believes in continuously upgrading it's products and providing a wide range of financial and advisory services to Indian and International Investors.

SICOM is acting as an effective catalyst to encash the strengths of Maharashtra, such as industrial culture, comfortable power position, qualified human resources, excellent infrastructure, State Government's initiatives in attracting private investment in the infrastructure projects, good telecommunication network, five star category industrial parks with abundant water supply, excellent social infrastructure in the industrial locations, in attracting foreign investment as well as investment from the NRIs and Indian companies in Maharashtra. Corporate Office :
SICOM Limited, 'Nirmal', Nariman Point, Mumbai 400 021. Tel. No. : 5657 2700 / 2202 3018
Fax No. : 2282 5781 / 2288 2895 E-mail : agarde@sicomindia.com Website : www.sicomindia.com

Regional Offices :
Aurangabad : Anand Bhavan, 166, N-5 (South), CIDCO, Aurangabad 431 001.
Tel.No. : 0240 2484580 / 2484590 Fax No. : 0240 2484570 E-mail : bkedar@sicomindia.com

Nagpur : Udyog Bhavan, 3rd Floor, Civil Lines, Nagpur 440 001.
Tel.No. : 0712 2564358 / 2552312 Fax No. : 0712 2561575 E-mail : jsalve@sicomindia.com

Nashik : Ground Floor, Common Service Centre, Nashik Trambak Road, MIDC Area, Satpur,
Nashik 422 007
Tel.No. : 95253 2354770 Fax No. : 95253 2354719 E-mail : rbhosale@sicomindia.com

Pune : Kubera Chambers, Dr.Rajendra Prasad Road, Opp. Sancheti Hospital, Shivaji Nagar,
Pune 411 005.
Tel.No. : 9520 2553 33 71 / 2553 81 67 Fax No. : 9520 25533201 E-mail : amahadik@sicomindia.com

New Delhi : 2 B, Vandana Building, 2nd Floor, 11, Tolstoy Marg, New Delhi 110 001.
Tel.No. : 011 23736738 Fax No. : 011 2373 6928 E-mail : mdas@sicomindia.com

Trademark

WHAT IS A TRADEMARK?

A trademark is a word, name, logo or symbol or phrase or device, which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and service marks.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks, which are used in interState or foreign commerce, may be registered with the Trademark Office of concerned countries individually or through Madrid Agreement Route . India is yet to become Member of the Madrid agreement.
There exist three different types of trademark protection:

• Common law
• State / Federal registration

In order to gain common law rights in a trademark, the owner must use the mark on goods or services in commerce. These rights may be limited to the area in which the owner is doing business. Countries like India have, only federal registration system for trademarks. However some countries like USA have provision of registration in any State as well as from the federal trademarks office. In order to secure a State registration, the owner must use the goods or services in commerce and simply file the mark with the Secretary of State. The boundaries of protection for a State trademark are limited to the particular State. A federal trademark registration extends the owner's trademark rights nationwide. The federal registration serves as notice to all other trademark owners and generally trumps any other form of trademark protection, of course with some limitations

Functions of a Trade Mark

1. It identifies the product of its origin
2. It guaranties its unchanged quality
3. It advertises the products &
4. It creates an image for products

RELEVANT FORMS AND PROCEDURE FOR OBTAINING TRADEMARK IN INDIA

(a) Objectives

The aim of the Trademarks Registry is to provide for registration and better protection of trade marks in India and for the prevention of the use of fraudulent marks on merchandise.

b) Functions

The Trademarks Registry had been functioning since 1.9.1940 for the administration of the Trade and Merchandise Marks Act, 1958 read with the Trade and Merchandise Rules, 1959 Since September 20, 2003 the Trademarks Act 1999 read with The Trademark Rules 2001 has come in force

Apart from the above, the Trade Marks Registry has other functions like issue of search reports as to whether an identical or deceptively similar trade mark is already registered or filed, preliminary advice regarding distinctiveness of a trade mark, issuing of search certificate for use under the Copyright Act, preparation of search materials, maintenance of Register of Trade Marks, preparation of annual statistical reports, publication of Trade Marks Journal, publication of annual reports and the like. The new Trademark Rules have provisions to enable users / customers obtain Trademark Search. Report within a week.

Through a Government of India initiated project for modernisation and administration of the Trade Marks Registry with UNDP/WIPO assistance, it has resulted in the computerisation system functioning, fee receipt generation, numbering of applications, preliminary search report, examination of application, journal printing, renewal, change of name and address of registered proprietors etc. Complete database of trademarks is now available from its administrative organization.

c) Procedure for registration of trade marks

Before applying for registration of a trade mark, it is desirable to conduct a market survey through an investigating agency, etc. to ascertain whether any identical or deceptively similar mark is used for the same goods or services by any other person /party in the market.

It is also desirable before applying for registration to obtain preliminary advice regarding the distinctiveness of the mark from the Registrar by making a request on form TM-55 with the prescribed fee of Rs.50/-. The request on form TM-55 can be filed at the Trade Marks Registry, Mumbai or at the regional branch offices at Delhi , Kolkata, Chennai or Ahamadabad.

Also a request on form TM-54 can be made with prescribed fee of Rs.50/- to the Trade Marks Registry, Mumbai or at the said any branches to obtain an official report to ascertain whether any identical or deceptively similar trade mark is pending for registration in respect of the same goods services. It is also possible to make a personal inspection or search through the records of the Trade Marks Registry on payment of prescribed fee of Rs.50/- per hour.

After following the above procedure, an application for a trademark may be made on form TM-1 with the prescribed fee of Rs.300/- at the appropriate office of the Trademarks Registry. The appropriate office means the office within whose territorial limits the applicant resides or has his principal place of business in India . In case of a foreign applicant, the place mentioned as address for service in India will determine the appropriate office at which the application should be filed.

An application on form TM-1 should be filed in triplicate along with fee of Rs.300/- and with 10 copies of additional representations of the mark. The additional representations shall contain the mark, name and address of the applicant, or MOA in case of a Society / Company, class, goods and date if any from which the mark has been used etc. A trademark particularly a device or figurative mark may preferably be a black and white representation on bromide prints of dimension of 8 cm x 8 cm. However if colour' is also an attribute in the Trademark for its distinctiveness, coloured photographs / print may be provided instead of said bromide paper.All the fees may be paid in cash, or Demand Draft or local cheques drawn in a scheduled bank at the place where the appropriate office is located payable in the name of the Registrar of Trademarks. An application to register a trademark should be made in respect of goods comprised in one class only.

COPYRIGHT LAW & PROCEDURE

Copyright aims at providing protection to authors (writers, artists, music composers, etc.) on their creations. Such creations are usually designated as “works”.
Topics covered under Copyright
Works covered by copyright include, but are not limited to, literary works such as novels, poems and plays; reference works such as encyclopedias and dictionaries; databases; newspaper articles; films and TV programs; musical compositions; choreography; artistic works such as paintings, drawings, photographs and sculptures; architecture; and advertisements, maps and technical drawings. Copyright also protects computer programs. Copyright does not however extend to ideas, but only to the expression of thoughts. For example, the idea of taking a picture of a sunset is not protected by copyright. Therefore, anyone may take such a picture. But a particular picture of a sunset taken by a photographer may be protected by copyright. In such a case, if someone else makes copies of the photograph, and starts selling them without the consent of the photographer, that person would be violating the photographer’s rights.
Protection accomplished automatically
Copyright protection is obtained automatically without any need for registration or other formalities. A work enjoys protection by copyright as soon as it is created.
However, many countries provide for a national system of optional registration and deposit of works. These systems facilitate, for example, questions involving disputes over ownership or creation, financing transactions, sales, assignments and transfers of rights.

Types of rights provided by Copyright
There are two types of rights under copyright:
(a) Economic rights, which allow the owner to derive financial reward from the use and exploitation of the work; and
(b) Moral rights, which highlight the personal link existing between the author and the work.
Economic rights covered by copyright
Under economic rights, the creators of a work can use their work as they see fit. They can also authorize or prohibit the following acts- in relation to a work:
- Reproduction in various forms, for example in a printed publication or by recording the work in cassettes, compact disks or videodiscs, or by storing it in computer memories;
- Distribution, for example through sale to the public of copies of the work;
- Public performance, for example by performing music during a concert, or a play on stage;
- Broadcasting and communication to the public, by radio or T.V, cable or satellite;
- Translation into other languages;
- Adaptation, for example by converting a novel or a play into a screenplay for a film;
Recent international developments also allow for works to be protected in the context of the Internet. The WIPO Copyright Treaty (WCT), concluded in 1996, addresses the challenges posed by today’s digital technology, thus ensuring that copyright owners will be adequately and effectively protected when their works are disseminated through new technology and communications systems such as the Internet.
Moral rights covered by copyright
Under moral rights, the author may claim:
- The right to have authorship recognized on the work. That is basically the right of the creator to have his or her name mentioned as the author, in particular when the work is used.
- The right to integrity of the work, that is the right to object to the work being modified, or being used in contexts that may cause harm to the reputation or honor of the author.
Exploitation of economic rights
Many creative works protected by copyright require financial investment and professional skills for their production and further dissemination and mass distribution. Activities such as book publishing, sound recording or film producing are usually undertaken by specialized business organizations or companies, and not directly by the authors. Usually, authors and creators transfer their rights to these companies by way of contractual agreements, in return for compensation. The compensation may take different forms, such as lump sum payments, or royalties based on a percentage of revenues generated by the work.Many authors do not have the ability or the means to manage their rights themselves. They often resort to collective management organizations or societies which provide for their members, the benefits of the organization’s administrative and legal expertise and efficiency in collecting, managing and disbursing royalties. These royalties are obtainedfrom the national and international use of a member’s work on a large scale, by, for example, broadcasting organizations, discotheques, restaurants, libraries, universities and schools.
Term of copyright
Copyright has a time limit: it usually lasts for the life of the author and 50 years after his death. The Berne Convention has established this rule, which is shared by the majority of countries, for the Protection of Literary and Artistic Works. Once the term has expired, the work is in the “public domain”. Thereafter, everybody will be free to use the work, without obtaining a specific authorization from the copyright owner. However, the Berne Convention allows providing for a longer period. In order to know what period of protection applies to a work in a particular country, it is advisable to read the national copyright legislation of that country.
Extent to which someone else’s work can be used without getting permission
Copyright is subject to limitations and exceptions, which take into account social, educational and other public policy considerations. International treaties, as well as national laws, allow to freely use limited portions of a work for certain purposes, such as news reporting, or making quotations in a way compatible with fair practices, or by way of illustration for teaching. Such cases of free use may vary from country to country and it is advisable to revert to the national law of that country, in order to verify whether advantage can be taken of such a possibility.
Need to protect copyright
Copyright contributes to human creativity by giving creators incentives in the form of recognition and fair economic rewards. Under this system of rights, creators are assured that their works can be disseminated without fear of unauthorized copying or piracy. This in turn helps increase access to the works and enhances the enjoyment of culture, knowledge, and entertainment all over the world.RELATED RIGHTS
Related rights provide protection to the following persons or organizations:
- Performers (actors, musicians, singers, dancers, or generally people who perform), in their performances;
- Producers of sound recordings (for example, cassette recordings and compact discs) in their recordings; and
- Broadcasting organizations, in their radio and television programs.
Sometimes, these rights are also referred to as neighboring rights.
Distinction between related rights and copyright
Copyright and related rights protect different people. Copyright protects authors of works. For example, in the case of a song, copyright protects the composer of the music and the writer of the words.In the same example, related rights would apply to:
- The musicians and the singer, who performs the song,
- The producer of the sound recording (called also phonogram) in which the song is included, and
- The organization that broadcasts a program containing the song.
Rights granted to the beneficiaries of related rights
National laws differ as to the extent of rights that are provided to performers, producers of sound recordings or broadcasting organizations.Different international treaties address this issue, such as the Rome Convention, the TRIPS Agreement, as well as the WIPO Performances and Phonograms Treaty (WPPT).Performers, in general, enjoy economic rights to prevent fixation, broadcasting and communication to the public of their live performances. Some national laws as well as the WIPO Performances and Phonograms Treaty (WPPT) grant them also rights of reproduction, distribution and rental of their performances fixed in phonograms, as well as moral rights to prevent unreasonable omission of their name, or to object to modifications to their performances included in a sound recording, if such modifications are likely to harm their reputation.Producers of sound recordings (also called phonograms) enjoy mainly the right to authorize or prohibit the reproduction and distribution of their sound recordings by others.Furthermore, the WIPO Performances and Phonograms Treaty (WPPT) ensures that producers of phonograms, as well as performers of works contained therein, are adequately and effectively protected when the sound recordings are disseminated through new technology and communications systems, such as the Internet.Broadcasting organizations are provided the rights to authorize or prohibit re-broadcasting, fixation and reproduction of their broadcasts. Related rights are subject to the same exceptions as for copyright, which would allow anyone to make free use of the performances, sound recordings or broadcasts for certain specific purposes, such as quotations, and news reporting.
Need to protect related rights
Performers are protected by reason of their creative contribution.Producers of sound recordings deserve protection because of the creative input as well as technical and financial resources needed to bring the recording to the public. Likewise broadcasting organizations have a justified interest in protecting their technical and organizational skill in programs from acts of piracy.

BASICS OF PATENT LAW INDIA

Patent law has been formulated with an objective to promote and protect the inventions and methods. The object of granting a patent is to encourage and develop science, technology and industry.
A patent can be defined as a grant of exclusive rights to an inventor over his invention for a limited period of time. The exclusive rights conferred include the right to make, use, exercise, sell or distribute the invention in India. The term of a patent is twenty years, after the expiry of which, the invention would fall into the public domain.
History
In 1957, Govt. of India appointed Justice N. Rajagopala Ayyangar examine and review the Patent law in India who submitted his report September 1959 recommending the retention of Patent System despite shortcomings. The Patent Bill, 1965 based mainly on his recommendations incorporating a few changes, in particular relating to Patents for food, drug, medicines, was introduced in the lower house of Parliament on 21st September, 1965. The bill was passed by the Parliament and the Patents Act 1970 came into force on 20th April 1972 along with Patent Rules 1972. This law was suited changed political situation and economic needs for providing impetus technological development by promoting inventive activities in the country.
Uruguay round of GATT negotiations paved the way for WTO. Therefore India was put under the contractual obligation to amend its patents act in compliance with the provisions of TRIPS. India had to meet the first set of requirements on 1- 1-1995. This was to give a pipeline protection till the country starts giving product patent. It came to force on 26th March 1999 retrospective from 1-1-1995. It lays down the provisions for filing of application for product patent in the field of drugs or medicines with effect from 01.01.1995 and grant of Exclusive Marketing Rights on those products.
India amended its Patents Act again in 2002 to meet with the second set of obligations (Term of Patent etc.), which had to be effected from 1-1-2000. This amendment, which provides for 20 years term for the patent, Reversal of burden of proof etc. came into force on 20th May, 2003. The Third Amendment of the Patents Act 1970, by way of the Patents (Amendment) Ordinance 2004 came into force on 1st January, 2005 incorporating the provisions for granting product patent in all fields of Technology including chemicals, food, drugs & agrochemicals and this Ordinance is replaced by the Patents (Amendment) Act 2005 which is in force now having effect from 1-1-2005 .
ESTABLISHMENT OF PATENT ADMINISTRATION IN INDIA
Patent system in India is administered under the superintendence of the Controller General of Patents, Designs, Trademarks and Geographical Indications.
The Office of the Controller General functions under the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry. There are four patent offices in India. The Head Office is located at Kolkata and other Patent Offices are located at Delhi, Mumbai and Chennai. The Controller General delegates his powers to Sr. Joint Controller, Joint Controllers, Deputy Controllers and Assistant Controllers. Examiners of patents in each office discharge their duties according to the direction of the Controllers.
Hierarchy of Officers in Patent office
Controller General of Patents, Designs, Trademarks & GI
Examiners of Patents & Designs
Assistant Controller of Patents & Designs
Deputy Controller of Patents & Designs
Joint Controller of Patents & Designs
Senior Joint Controller of Patents & Designs
Patentable Inventions:
A patent can be granted for an invention which may be related to any process or product. The word “Invention “ has been defined under the Patents Act 1970 as amended from time to time.
“An invention means a new product or process involving an inventive step and capable of industrial application” (S. 2(1)(j))
“ new invention” is defined as any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art; Where, Capable of industrial application, in relation to an invention, means that the invention is capable of being made or used in an industry
(S.2 (1)(ac)) Therefore, the criteria for an invention to be patentable are,
(1) An invention must be novel
(2) has an inventive step and
(3) is capable of industrial application
To be patentable, an invention should fall within the scope of patentable subject matter as defined by the patent statute. The invention must relate to a machine, article or substance produced by manufacture, or the process of manufacture of an article. A patent may also be obtained for an improvement of an article or of a process of manufacture. With regard to medicine or drug and certain classes of chemicals no patent is granted for the product itself even if new, only the process of manufacturing the substance is patentable. However, product patents would be available for drugs and food materials from 2005 as India’s obligations under the TRIPs Agreement would kick in from that point of time. If any substance falls outside the scope of patentable subject matter, it cannot be patentable.
NOT PATENTABLE INVENTIONS
There are some products and processes, which are not patentable in India They are classified into two categories in the patent act
a) Those which are not inventions (S.3)
b) Invention relating to atomic Energy (S.4)
Various types of non-patentable inventions under Section 3 are as follows-
3(a) An invention which is frivolous or which claims anything obvious contrary to well established natural laws.
Merely making in one piece, articles, previously made in two or more pieces is frivolous. Mere usefulness is not sufficient (Indian vacuum brake co. ltd vs. Laurd (AUR 1962 CAK 152).
Perpetual motion machine alleged to be giving output without any input is not patentable as it is contrary to natural law.
3(b) An invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment
3(c) The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substances occurring in nature;
3(d) The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
Explanation- For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy.
[Note: Before amendment of Section 3 (d) by the Patents (Amendments) Ordinance 2004 it reads as “mere discovery of any new property or new use for a known substance or mere use of a known process, machine or apparatus…”The insertion of the word “mere” before ‘new use for a known substance’ in this clause by the Patents (Amendment) Ordinance 2004, is for the purpose of drafting clarity only as without it the sub-section would have remained ambiguous. This does not restrict the non patentability and give rise to ambiguity and possible misuse. There is no need of giving wider meaning to it.]
3(e) A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance:
3(f) The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way.
3(h) A method of agriculture or horticulture.
(i) A method of producing a new form of a known plant even if it involved a modification of the conditions under which natural phenomena would pursue their inevitable course is not patentable. (N.V. Philips Gloeiammpenfabrieken's Application 71 RFC 192).
3(i) Any process for the medicinal, surgical, curative, prophylactic diagnostic therapeutic or other treatment of human being or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
Plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
Example: Clones and new variety of plants are not patentable. But process / method of preparing Genetically Modified Organisms are patentable subject matter.
3(m) A mere scheme or rule or method of performing mental act or method of playing game;
3(n) A presentation of information
3(o) Topography of integrated circuits;
INVENTIONS RELATING TO ATOMIC ENERGY (S.4)
“No Patent shall be granted in respect of an invention relating to atomic energy falling within subsection (1) of section 20 of the Atomic Energy Act, 1962
Various types of Patent Applications in India
1. Ordinary application
2. Convention application
3. PCT international application
4. PCT National phase application
5. Application for Patent of addition
6. Divisional Application
Procedural requirements
An application for a patent in the prescribed form along with the prescribed fee has to be filed in the appropriate patent office. Examiners of patents scrutinize the application accompanied by a specification so that it satisfies the requirements. After examination, the Patent Office will raise objections and once the applicant convinces the Controller Of Patents will put the specification in the Official Gazette and on its acceptance without any controversy, a patent shall be granted.
A patent grant gives the patentee the exclusive right to make or use the patented article or use the patented process by preventing all others from making or using the patented article or using the patented process. The patentee can assign, grant licenses or deal for consideration.
The patent application passes through the following stages:

FILING
An application for a patent can be filed by the true and first inventor. It can also be filed the by the assignee or legal representative of the inventor. If an application is filed by the assignee, proof of assignment has to be submitted along with the application. The applicant can be national of any country.
Form of Application
Every application shall be accompanied by a provisional or complete specification. Provisional applications are generally filed at a stage where some experimentation is required to perfect the invention.
Filing of a provisional specification allows the applicant to get an early application date.
Provisional Specification shall contain:
a. Title,
b. Written Description,
c. Drawings, if necessary and
d. Sample or model if required.
The complete specification shall contain:
a. Title,
b. Abstract,
c. Written Description,
d. Drawings (where necessary),
e. Sample or Model (if required by the examiner),
f. Enablement and BestMode,
g. Claims and
h. Deposit (Microorganisms)
Priority Date
Priority date is the date of first filing allotted by the patent office to an application. If a provisional application is followed by a complete application, the priority date shall be date of filing of the provisional application. If an Indian application is filed after a foreign or PCT application, the priority date shall be the date of filing of the foreign or PCT application. If an application is divided into two applications, the priority date shall be date of filing of the parent application.
Priority date is the date of reference used by the patent to determine the newness of the invention. If the claimed invention is part of public knowledge before the priority date, it will not be eligible for a patent. Under US Law, priority date is pushed back to the date of conception for determining novelty and Non-obviousness.
Place of Filing
Patent Application can be filed at any of the four patent offices in India. Patent Offices are located at Kolkata, New Delhi, Chennai and Mumbai.
Documents to be submitted at the time of filing
The following documents have to be submitted at the time of filing a patent application:
Form 1 - Application for the grant of patent.
Form 2 - Provisional or Complete Specification.
Form 3 - Statement and undertaking by the applicant.
Form 5 - Declaration as to inventorship.
Form 26 - Authorization of patent agent or any other person.
Priority document details have to be filed for a Convention application.
PUBLICATION
A patent application will be published on expiry of eighteen months after the priority date. It can be published earlier, if such a request is made by the applicant. The application will not be published if directions are given for secrecy, until the term of those directions expires. It will also not be published if the application is withdrawn three months before publication date.
On publication, specification including drawings and deposits shall be open for public inspection. The rights of the patentee start from the date of publication but they cannot be enforced until after patent grant.
EXAMINATION
1. Request for Examination
The process of examination starts with a request for examination. The request has to be made within 36 months from the date of priority or filing. However, if secrecy directions have been given for the application, the request can be made six months after the directions are revoked or thirty six months from the date of priority or filing, if that date is later.
2. Examination
On receiving the request, the controller shall direct the patent application to the Examiner for examination. To start with, the examiner makes a formal examination by verifying the propriety and correctness of all documents filed with the application. Later, he verifies the patentability of the application. The patentability analysis includes all patentability requirements.
After confirming that the application falls within the scope of patentable subject matter, the examiner conducts a prior art search to check if there is prior art, which anticipates the invention claimed. Prior art search for anticipation includes search for anticipation by publication, filing of complete specification, etc. He then verifies the existence of inventive step, Industrial application, and Enablement and Best mode.
The examiner will give the examination report within 1 month from the date of reference by controller and that term shall not exceed three months. If the examination report is adverse, the controller sends a notice to the applicant and gives him an opportunity to correct and if necessary an opportunity of hearing. The Controller might ask the applicant to amend the application in order to proceed further. If the applicant does not make such changes, the application might be rejected.
The Controller has the power to divide the application, post date the application, substitute applicants and reject the application. An order of division will be given if the application contains more than one invention and if it is required to file separate applications for each invention. The application might be post dated to a period of six months if requested by the applicant. Substitution of inventors is generally done if the inventor has been wrongfully mentioned or if a joint inventor has not been mentioned in the application.
The controller has the power to reject the application, if the applicant does not comply with his requirements.
OPPOSITION
1. Pre-grant Opposition
Any person can file an opposition for grant of patent after the application has been published. Opposition may be filed on any of the following grounds:
a. Non compliance of patentability requirements.
b. Nondisclosure or Wrongful disclosure of genetic resources or traditional knowledge.
2. Post-grant Opposition
Any person can file an opposition within a period twelve months after the grant of a patent. It can be filed based on the following grounds:
a. Wrongful obtainment of the invention by the inventor.
b. Publication of the claimed invention before the priority date.
c. Sale or Import of the invention before the priority date.
d. Public use or display of the invention.
e. The invention doesn’t satisfy the patentability requirements.
f. Disclosure of false information to patent office.
g. Application for the invention is not filed within twelve months from the date of convention application.
h. Nondisclosure or wrongful disclosure of the biological source.
i. Invention is anticipated by traditional knowledge.
3. Process of Opposition
On receiving a notice of opposition, the controller notifies the patentee. He then constitutes an Opposition board to deal with the opposition. The Opposition board decides the issues after giving reasonable opportunity of hearing to both the parties. The Opposition board might invalidate the patent, require amendments or maintain the status quo. If amendments are required, they have to be made within the prescribed period in order to maintain the patent.
GRANT OF PATENT
If the application satisfies all the requirements of the patent act, the application is said to be in order for grant. An application in order for grant shall be granted expeditiously. A granted patent shall be published in the official gazette and shall be open for public inspection. Every granted patent shall be given the filing date. The patent will be valid throughout India. A granted patent gives the patent holder the exclusive right to make, use, sell, offer for sale and import the product or use the process. However, the government can make use of the patent for its own purposes or for distributing an invention relating to medicine to hospitals and dispensaries. Furthermore, any person can make use of the patent for experiment or education.
Assignments
A patentee may assign the whole or any part of the patent rights to the whole of India or any part thereof. There are three kinds of assignments: legal assignment, equitable assignment and mortgages. An assignment of an existing patent is a legal assignment where the assignee may enter his name as the patent owner. A certain share given to another person is called an equitable assignment and a mortgage is when patent rights are wholly or partly transferred to obtain money.
Licenses
A patentee may, by a license, permit others to make, use, or exercise, the invention which otherwise would not be allowed. The license should be in writing and the terms of which must be given in the application filed with the Controller. A license maybe given in express terms or implied from the circumstances. An exclusive license excludes all other persons including the patentee from the use of invention In a limited license the limitation may arise as to persons, time, place, manufacture, use or sale.
Compulsory Licenses and Government use of inventions
Under certain circumstances like when reasonable requirements are not satisfied, a very high royalty is quoted, when a patent cannot work without another related patent or on notification by the Central government, the Controller can grant a license to an interested person.
The Central or State government can use for a purpose of its own all patented inventions or processes either with or without royalty.
Revocation of a patent
A patent may be revoked by various modes namely revocation in the public interest by the Government or relating to atomic energy by Controller. A patent may also be revoked for non-working. The High Court may revoke a patent on noncompliance with the requirements for use of an invention or on petition by a person interested on various specified grounds.
A patentee may at any time offer to surrender his patent by giving notice to the Controller, whom after hearing the parties may revoke the patent.
Patent enforcement and Infringement of patents
Infringement of a patent is the violation of the exclusive rights of the patentee.
Determination of infringement depends on the scope of exclusive rights of the patentee, whether the infringer’s acts amount to making, using, selling or distributing a product or using a method and if in fact the acts amount to an infringement. The burden of proof is on the patent owner for proving infringement.
Defenses
The defendant in a suit for infringement may plead one or more defenses. He can claim the patent owner is not entitled to sue for infringement or deny any infringement. Any leave or license express or implied to use the invention does not amount to infringement and where infringement is invalid on certain grounds.
Acts done in connection with government use, experiment, research, education and falling within the scope of innocent infringement or done after failure to pay renewal fee or before the date of amendment of the specification do not amount to infringement. A defendant may also counter claim for revocation of patent.
Remedies
Injunctions act as a preventive relief to the patentees. The patent owner at the start of a trial can request for an interim injunction in order to restrain the infringer from continuing the infringement to prevent further losses. Permanent injunction is given based on the merits of the case at the end of the trial. A patent owner is entitled to the relief of damages as compensation to the patentee and not punishment to the infringer. The patent owner may also opt for the account of profits where he has to prove use of invention and the amount of profit derived from such illegal use.

Securitization Act 2002

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest act extends to the whole of India

Under section 69 of Transfer of Property Act, mortgagee can take possession of mortgaged property and sale the same without intervention of Court only in case of English mortgage. (English Mortgage is where mortgagor binds himself to repay the mortgaged money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer the property to the mortgagor upon payment of the mortgage money as agreed). In addition mortgagee can take possession of mortgaged property where there is a specific provision in mortgage deed and the mortgaged property is situated in towns of Kolkata, Chennai or Mumbai. In other cases possession can be taken only with the intervention of court.

Therefore till now Banks/Financial Institutions had to enforce their security through court. This was a very slow and time-consuming process. There was also no provision in any of the present law in respect of hypothecation, though hypothecation is one of the major security interest taken by the Bank/Financial Institution.

Keeping in mind the above factors among many other the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act was enacted with effect from 21.6. 2002.

The Act deals with three aspects.

1. Enforcement of Security Interest by secured creditor (Banks/Financial Institutions)

2. Transfer of non- performing assets to asset reconstruction company, which will then dispose of those assets and realize the proceeds.

3. To provide a legal framework for securitisation of assets.

What is security interest, property, hypothecation

Security Interest means right, title and interest of any kind whatsoever upon property, created in favor of any secured creditor and includes any charge, hypothecation, assignment other than those specified below.

Property means

1. Immovable property
2. Movable property
3. Any debt or any right to receive payment of money, whether secured or unsecured
4. Receivables, whether existing or future
5. Intangible assets, being know-how, patent, trade mark, licence, franchise or any other business or commercial right of similar nature.

Hypothecation means a charge in or upon any movable property, existing or future, created by a borrower in favor of a secured creditor without delivery of possession of the movable property to such creditor, as a security for financial assistance, and includes floating charge and crystallization into fixed charge on movable property.

Exclusions from 'security interest'

Exclusions from 'Security interest' - Provision of the Act shall not apply to the following :

1. A lien on any goods , money or security given by or under the Indian Contract Act, 1872 or the Sale of Goods Act, or any other law for the time being in force.
2. A pledge of movables within the meaning of section 172 of Indian Contract Act,
3. Creation of any security in any aircraft as defined u/s 2(1) of Aircraft Act,
4. Creation of any security interest in any vessel as defined in section 3 (35) of Merchant Shipping Act.
5. Any conditional sale, hire -purchase or lease or any other contract in which no security interest has been created.
6. Any right of unpaid seller u/s 47 of Sale of Goods Act.
7. Any properties not liable to attachment or sale under first provision to section 60(1) of Code of Civil Procedures.
8. Any security interest for securing repayment of any financial asset not exceeding one lakh Rupees.
9. Any security interest creating in agricultural land.
10. Any case in which the amount due to less than 20% of the principal amount and interest thereon (i.e. where borrower has repaid more than 80% of principal amount and interest. )

Who is a secured creditor & when can security be enforced

A secured creditor means any bank or financial institution or any consortium or groups of banks or financial institutions and includes -

1. Debenture trustee appointed by bank or financial institution
2. Securitisation company or reconstruction company
3. Any other trustee holding securities in whose favor security interest is created for due repayment by any borrower of any financial assistance.

When can security be enforced

Any security interest can be enforced by a secured creditor without intervention of Court or Tribunal in accordance with the provisions of the Act.

Such action can only be taken any borrower, who is under liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any installment thereof and the account is classified as NPA. (Non Performing Asset by the secured creditor)

No action can be taken if:

1. It is agricultural land
2. When amount due is less than Rs. one Lakh
3. When amount due is less than 20% of the principal amount and interest thereon, i.e. the borrower has repaid more than 80% of the principle amount and interest.

No action can be taken if the debt is time barred under the Limitation Act.

What is a NPA (non performing asset) Action for enforcement of security interest can be initiated only if the secured asset is classified as Non Performing Asset. Non Performing Asset means an asset or account of borrower, which has been classified by a bank or financial institution as sub-standard, doubtful or loss asset, in accordance with the directions or guidelines relating to asset classification issued by RBI. An amount due under any credit facility is treated as "past due" when it has not been paid within 30 days from the due date. Due to the improvement in the payment and settlement systems, recovery climate, upgradation of technology in the banking system, etc., it was decided to dispense with 'past due' concept, with effect from March 31, 2001. Accordingly, as from that date, a Non performing asset (NPA) shell be an advance where interest and /or installment of principal remain overdue for a period of more than 180 days in respect of a Term Loan, the account remains 'out of order' for a period of more than 180 days, in respect of an overdraft/ cash Credit(OD/CC), the bill remains overdue for a period of more than 180 days in the case of bills purchased and discounted, interest and/ or installment of principal remains overdue for two harvest seasons but for a period not exceeding two half years in the case of an advance granted for agricultural purpose, and any amount to be received remains overdue for a period of more than 180 days in respect of other accounts. With a view to moving towards international best practices and to ensure greater transparency, it has been decided to adopt the '90 days overdue' norm for identification of NPAs, form the year ending March 31, 2004. Accordingly, with effect form March 31, 2004, a non-performing asset (NPA) shell be a loan or an advance where; interest and /or installment of principal remain overdue for a period of more than 90 days in respect of a Term Loan, the account remains 'out of order' for a period of more than 90 days, inrespect of an overdraft/ cash Credit(OD/CC), the bill remains overdue for a period of more than 90 days in the case of bills purchased and discounted, interest and/ or installment of principal remains overdue for two harvest seasons but for a period not exceeding two half years in the case of an advance granted for agricultural purpose, and any amount to be received remains overdue for a period of more than 90 days in respect of other accounts.

Workmen Compensation Act - A Quick Overview

Workmen Compensation Act: A Brief

The Workmen’s Compensation Act, 1923 provides for payment of compensation to workmen and their dependants in case of injury and accident (including certain occupational disease) arising out of and in the course of employment and resulting in disablement or death. The amount of compensation to be paid depends on the nature of the injury and the average monthly wages and age of workmen. The minimum and maximum rates of compensation payable for death (in such cases it is paid to the dependents of workmen) and for disability have been fixed and is subject to revision from time to time.

Applicability of the Law?

The Act extends to the whole of India. The act applies to factories, mines, docks, construction establishments, plantations, oilfields and other establishments which are explicitly mentioned in Schedule II and III of the act. Moreover it excludes establishments covered by the ESI Act.

Every employee including those employed through a contractor except casual employees, who is engaged for the purposes of employer’s business and who suffers an injury in any accident rising out of and in the course of his employment, shall be entitled for compensation under this Act.

Definition of the Workmen under the Act:

“Workman” means any person other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business.

A “Casual” workman is one who is engaged on work which is of a casual nature or which is of a non-recurring or intermittent nature.

Scope of Cover:

The Workmen’s Compensation Insurance Business in India is controlled by the Workmen’s Compensation Insurance Tariff (W.C.Tariff). The Tariff provides for two types of Insurance as follows:

Table A: This policy provides indemnity to the Insured if any employee in the Insured’s immediate service shall sustain bodily injury by accident or contracts disease arising out of and in the course of his employment by the Insured in the Business and if the Insured shall be liable to pay compensation for such injury either under.

Table B: This Policy provides indemnity to the Insured against their legal liability under the Fatal Accidents Act, 1855, and at Common Law. (This Policy is not issued to cover employees who fall within the definition of “workmen” under the Workmen’s Compensation Act, 1923, as amended).

Calculation of the Sum Assured:

This insurance policy stands subject to the provisions of the Workmen’s Compensation Act. The sum insured is based on the annual wages of the workmen during the insurance period. So the compensation is adjusted at the end of the policy period or submission of the statement of actual wages paid during the insurance period. The policy can also cover the medical expenses of the employer’s workmen up to the limit specified under the policy.

Employer’s Liability Arises:

ü if personal injury is caused to a workman by accident arising out of and in the course of his employment;

ü If a workman employed in any employment contracts any disease, specified in the Act as an occupational disease peculiar to that employment.

Employer’s Liability Does not Arise:

ü Any injury that does not result in a fatality or disability for 3 days subsequent to the accident.

ü The first 3 days of a temporary disability if the total temporary disability period does not exceed 28 days.

ü Any non-fatal injury caused by an accident that is directly attributed to.

ü Influence of drinks or drugs.

ü Willful disobedience of an order that would have secured the workman’s safety.

ü Willful removal or disregard of any safety device.

ü War or nuclear group of perils.

ü Liability towards employees of the contractors of the insured (unless specifically declared).

ü Any employee who is not a “Workman” as per the Workmen’s Compensation act.

ü Liability assumed under an agreement.

ü Occupational diseases unless cover is extended on payment of extra premium.

ü Any change in statute provisions after the policy has commenced.

When the Compensation is to be paid :

ü Compensation shall be paid as soon as it falls due.

ü In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.

Penalty Applicable for Non Payment of Claim :

ü If the employer defaults in paying the compensation due under this Act within one month from the date it fell due and has a material justification for the same than in addition to the amount of the arrears, he will have to pay a simple interest thereon at the rate of twelve per cent per annum or at a higher rate but not exceeding the maximum of the lending rates of any scheduled bank.

ü If the employer defaults in paying the compensation due under this Act within one month from the date it fell due and does not have a material justification for the delay than he can be directed to pay, in addition to the amount of the arrears and interest a further penalty of a lumpsum amount not exceeding fifty per cent of the total Arrears payable.

Divorce under Hindu Law-Cruelty

Under clause (ia) of sub-section (1) of section 13 and under sub-section (1) of section 10 of the Hindu Marriage Act, 1955 cruelty is a ground of divorce as well as judicial separation respectively. Whether a particular act or conduct complained of is covered under the ground of cruelty or not, will always be decided on facts and circumstances in each case.

What is Cruelty?
Under the English Law, legal concept of cruelty is conduct of such a character as to cause danger to life, limb or health (physical or mental) or as to give rise to a reasonable apprehension of such danger. Before the amendment of the Hindu Marriage Act, which was brought in the year 1976, the rigid meaning and interpretation was given to the ground of cruelty. But even before the amendment, the Supreme Court in Dastane Vs. Dastane, AIR 1975 SC 1534, tried to give a literal meaning to the ground of cruelty applicable in terms of divorce or judicial separation.

Though the concept of English Law and the Hindu Marriage Act in terms of cruelty as a ground for divorce or judicial separation is more or less the same, yet the learned Judges in India still hold that marriage is a sacrament taking into consideration the social and cultural conditions of our country.

In Sukumar Vs Manohar Shivaram Jagesha, the Court observed:
The question whether a particular act or behaviour would amount to cruelty or not depends upon the character, way of life of the parties, their social and economic conditions, their status, customs and traditions. Each case is to be decided on the facts of its own. The judges and the lawyers should not import their own notions of life while dealing with matrimonial cases.

Classification of Cruelty:
Cruelty is classified into two heads.
1. Physical cruelty and
2. Mental cruelty

Physical Cruelty:
It is a settled law that physical violence is not necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating. Therefore, it goes without saying that the act of cruelty consists of mental torture or physical violence. If it is a physical violence, there will be no problem for a court to arrive at a decision while determining a case presented before it, but in case of mental torture or harassment, the court finds comparatively more difficult to come to final conclusion.

Firstly the court begins its enquiry as to the nature of cruel treatment as well as the impact of that treatment in the mind of the spouse. Ultimately it is a matter of inference to be drawn by taking into account of the nature of the conduct and its effect on the complaining spouse.

Kaushalya Vs Wisakhi Ram:
The husband had been ill treating the wife and beating her. On one occasion she had to go to the police station to lodge a complaint against her husband. The Punjab and Haryana High Court observed that according to the standards of all civilized world these acts would constitute cruelty, even though injuries might not be serious as to require medical treatment.

Saptmi Vs Jagdish:
It was held that if a husband constantly abuses and insults the wife and occasionally resorts to physical violence against her, it amounts to cruelty.

Mental Cruelty:
An act of mental cruelty is far more severe and dangerous than an act of physical violence. The eye opener cases of mental cruelty are Mohit Bhatnagar Vs Sangeeta Bhatnagar and Deepak Johri Vs Kum Kum Johri, the case of Mohit Bhatnagar has since been decided by the Matrimonial Court after 7 years of long battle and the case of Deepak Johri is still pending in the High Court of Delhi.

Deepak Johri and his wife Kum Kum Johri have been living separately for more than 12 years and the Court has yet to decide their fate. Criminal proceedings against Mohit Bhatnagar are still going on. As per my opinion, the non-decision of such cases for a very long time, also amount to mental torture, agony, and punishment of the highest order. In other words this amounts to mental cruelty to both the parties on account of delay oriented procedure prevalent in the courts, whatever be the reasons.

In the judgment of the Supreme Court in V. Bhagat Vs D. Bhagat,(1994)1SCC337,AIR1994SC710 the learned judges granted the relief by cutting short the delay oriented procedure adopted by the District Court as well as the High Court of Delhi. Every matrimonial petition may be heard on day to day basis, and be disposed of within six months from the service of the petition on the respondent. The High Court is also required to dispose of every appeal within three months of the service of the notice of appeal to the respondent.

Inspite of the fact that the law provides that every matrimonial proceeding should be completed within six months, no serious efforts are made either by the courts or by the advocates to adhere to the time limit. And the reality is that no matrimonial proceedings are completed before five or ten years. This long delay itself is also the cause of mental torture or mental cruelty to all aggrieved parties facing matrimonial proceedings in the courts.

How to prove mental cruelty?
The standard of in case of mental cruelty need not be beyond reasonable doubt, as is required in the criminal trials. What is required in such cases is that the court must be satisfied of preponderance of probabilities and not satisfaction beyond all reasonable doubts.

The act of mental cruelty in matrimonial homes, matrimonial violence and wife battering continues all over the world. Often the unwanted acts of mental cruelty prove to be much more devastating than the acts of physical violence.

Mental cruelty can be inflicted by many ways. A false criminal case to harass the husband would be an act of cruelty. Refusal to have marital intercourse, false complaints to the employees by the wife, an act of nagging, false, scandalous, malicious and baseless charges etc. come under the purview of mental cruelty.

Kiran Mandal Vs Mohini Mandal:Punjab-Haryana High on 10/3/1989
Where a wife is found to be of bad temperature and makes false allegations against her husband that he had illicit relations with his brother's wife. It amounted to an act of cruelty.

Harbhajan Singh Vs Amarjit Kaur: Supreme Court on 23/10/2002
The wife not only refused to do household work, but in the presence of guests, also forced the husband to clean the dining table, utensils and crockery. She even slapped the husband. She used to keep her husband waiting outside the house for half an hour or more on his return from the office. She went to the extent of levelling false charges of embezzlement against her husband to the bank authorities, where he was employed.

Shanti Devi Vs Raghav Prakash: Rajasthan High Court on 29/10/1984

The wife made an allegation that her husband was impotent. She also put on fire the doctoral thesis of her husband, which was yet to be submitted. The husband was a lecturer in the college.The value of the thesis to a student who wants to do Ph. D. is undoubtedly great and any damage done to it is bound to upset him and causes irreparable mental agony and torture. Unfortunately, the burning of thesis by Shanti Devi wife cannot be ignored and it is bound to be treated as an act of great cruelty.

Ashok Kumar Vs Vijay Lakshmi:
False allegations of the wife that an attempt by the husband was made to burn her amounts to cruelty.

Condonation of Cruelty:
Condonation is forgiveness of conjugal offence with full knowledge of all circumstances. To constitute condonation there must be two things, viz., forgiveness and restoration. Forgiveness is the essence of condonation. To be condonation, it must completely restore the offending party and must be followed by cohabitation. There is no condonation unless conjugal cohabitation has been resumed or continued.

While filing a petition for divorce, on the ground of cruelty in the matrimonial court, the aggrieved party is required specifically to mention that he / she has not condoned the cruelty. Even in an affidavit, he / she is required to mention the non - condonation of cruelty to get a decree of divorce on the basis of cruelty.

Custody of Children

Section 26 of the Hindu Marriage Act, 1995 deals with the custody of children. The matrimonial court can grant the custody of the child, as an interim measure, in a case pending before it.

The Section gives the appropriate court (usually the Court of Additional District Judge) ample power, to issue directions, or pass orders, during the pendency of the proceedings, or at any time thereafter, for the custody, maintenance and education of minor children of the couple who are partner to the proceedings.

The wishes of the children, wherever it is possible to do so, are always kept in mind by the courts, while passing orders in connection with the custody of the minor children. The power to make such orders includes the power to revoke, suspend or vary them and includes interim orders as well as final orders.

Property of Minor Children:
This section does not speak about the property of the minor children. In fact, the provisions of this section can not be interpreted to affect the ordinary law of guardianship of minor children. This section does not speak about the property of the minor children; it speaks only of their custody, maintenance, and education, or in other words the guardianship of their persons.

The factors, which the court keeps in mind, while deciding the question of the minor children:
There are of course various factors, which have to be kept in mind by the courts deciding the question of the custody of the minor children. The High Court of Himachal Pradesh observed that “The welfare of the minor is the crucial thing to be regarded by the court”. (In Paraminder Lal Sarin Vs Suma Lata, AIR 1984 HP1)

The orders passed by the competent court in regard to the custody of the children, pending disposal of the case, are not final. These are interim orders. They are subject to change, depending upon the circumstances of the case. The court has very wide powers to change, vary or alter its earlier order in case the need arises.

Procedure followed by the courts while deciding the custody of minor children:
The normal procedure adopted by the courts is very simple. The mother invariably gets the custody of the child, if the child is below the age of five years. After the child has crossed the age of five, the custody of the male child goes to the father, and custody of female goes to the mother. But the court has ample powers to deviate from the normal procedure, taking into consideration the facts and circumstances of each case brought before it.

A. V. Venkatakrishnaiah Vs S A Sathyakumar:
The father had remarried and had a son from his second wife. It was quite probable that more issues may be appearing in due course. The step – motherly treatment is proverbial in this country. In the court also minor refused to go to his father. The father was likely to have not much time left to look after his son, who would be left with his step mother. Taking all the facts into consideration, the Karnataka High Court held that the welfare of the child was not secure in his father’s house, and its custody was refused to him though being an officer in a Bank, he was in a position to look after the child well and had made several deposits in the bank in the name of the child. Therefore the petition of the father for the custody of the child was, dismissed by the Hon’ble High Court.

Court decision safeguards abandoned Child’s future:
The five - month old unnamed girl, who was abandoned by her mother three days after being born, was restored to her guardians, thanks to the landmark judgment by the Lucknow bench of Allahabad High Court. Ironically, the High Court did not honor the claims of either Mr. Sarwan Kumar Sinah to seek custody of the child, or those of Mr. Shakil Aziz, who approached the court on religious grounds.

The Division Bench of the High court, comprising Justice D. K. Trivedi and Justice I. P. Vashistha, lamented the absence of any rules. Devices or regulations adopted by the State Government for adoption and upbringing of such abandoned children, especially since it is a welfare state, spending enormous amounts on populist scheme. The court ruled in favour of a bank officer. Mr. Manoj Rajan Asthana, because he could bring up the child in the best possible manner. His wife, Mrs. Nandini Asthana being a science post graduate, who could take good care of the child’s education in a better way than the wife of the other two contenders, who were not even graduates, the Court observed.

“Both me and Mrs. Asthana are highly educated, financially better placed than the other two contenders, and are much younger than them to ensure proper upbringing of the child” the Asthanas had said.

Regarding Mr. Shakil Azizs claim that being the daughter of Muslim parents, the child should be handed over to a Muslim family only, the Judge observed: “Every infant is a child of God, radiating innocence of an angel. It has no religion, it is man made customs and practices, which emboss him with sectarian brands.” The Court said that child should make her own decisions about her religious beliefs when she comes of age. The Court hoped that her foster parents would bring her up in a liberal environment where human values were given better consideration than dogmatic philosophies.

The unfortunate child was born at the local Dufferin Hospital on April 1st, 1995. Her mother’s name, as per hospital records is Shama, wife of Khalil, a resident of Rakabganj, Lucknow. However, when her mother deserted her and a search was launched, the address was found to be fake. The child, who would otherwise have landed into some orphanage proved to be luckier than other such abandoned children as on reading the news in a local paper, Mr. Shravan Kumar Sinah, a school teacher from Gaya (Bihar) who happened to be in town to visit his brother, went to the hospital to seek the girl’s custody as he had been childless for the past 29 years.

However Mr. Shakil Aziz, also without a child for the past 22 years, finding that there was already a claimant for the child’s custody, appealed to the High Court, seeking guardianship of “daughter of a Muslim family”. But the Court ruled that since Ms. Shama’s name and address could not be verified there was no proof of her religion. While the case was still pending in the High Court, an issueless Mr. Asthana also filed an application to seek the custody of the child.

The Court, while seeking advice of various government and non government organisation on the issue, ordered Dufferin Hospital Superintendent Dr. S. S. Negi to take of the child while the case was being decided in the Court. The High Court also asked Judge J. C. Mishra to ascertain the most suitable guardian for the child. The High Court in its order, has attached a condition that if the Asthana family was not found taking good care of the child, the court will change its decision.