Love, Live-In and the Law

Love, Live-In and the Law

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He was 45 and she, 60. It wasn’t the 15-year age gap between the two of them that took me by surprise as much as their reason for seeking me out. Neither of them was legally separated from their respective partners. They had come to me, a lawyer, to have an agreement drawn up.

The man had been living apart from his legal wife for seven years now. He had two grown-up children pursuing their own careers. He was emotionally dissatisfied with his wife. The woman, on the other hand, had been estranged from her legal husband for four years. Her four children were all married. Her husband was an alcoholic and she was a victim of domestic violence.

Living in the same vicinity they had felt a mutual attraction and confided their feelings to each other. Now they wished to be more responsible to and for each other and that is why they came to me.

I suggested they legally divorce their partners and then proceed to live out their lives peacefully together. However, neither of them wished to divorce their legal spouses and yet they were univocal about continuing to live together. And they insisted on an agreement being drawn up. I pointed out to them that an agreement of cohabitation, under such circumstances, would have no legal sanction or significance. They still wanted it. I drew it up.

After they left, brooding upon this visit, I was reminded of lyricist Indeevar’s beautiful words from the Bollywood filmPrem Geet:

“Naa umrr kee sima ho, naa janm kaa ho bandhan

Jab pyaar kare koyee, toh dekhe keval mann

Love can happen to anyone, at any time. What was profound about my two visitors was their maturity. Throughout our interaction they had spoken with quiet assurance. There had been no histrionics. Everything had been succinct and matter-of-fact.

Couples who marry or register a civil partnership acquire certain legal rights and responsibilities regarding their relationships. If a married couple (married via a religious ceremony or a civil one) – choose to end their relationship, they need to do so formally through the divorce or dissolution process.

A cohabiting or unmarried couple can separate without having to go through any formal process, but splitting up can be more difficult for them as there is no recognised structure for sorting things out. Forming a cohabitation agreement can help set down some practical guidelines for the relationship between the partners. A wide range of matters can be included in the cohabitation agreement: financial, assigning and/or accepting responsibilities, handling and/or settlement of disputes. Such an agreement made beforehand could help sustain the relationship. And if the relationship were to terminate, the document could ease the break-up, even save extraneous costs (like legal costs).

Courts may consider the agreement of cohabitation, but it would not be legally binding. There is no certainty that it can be reinforced. For mature people, like my two visitors, the legal aspects of such an agreement are quite secondary to the satisfaction they derive from it. Their prime concerns are fairness and practicality.

Siddhartha Mishra ( The author is a Lawyer )

It was first published on Bonobology.com.

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Justice system is a human system and it is fallible

 

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Judicial Manipulation Rocks the Nation

Our judicial system is based on manipulative finesse and exploitative abilities of the lawyers. Smartness of the advocate or solicitor may allow the criminals to walk freely. Fairness of judicial system resuscitates the entire national edifice through distinguished and valuable verdicts, while maintaining symmetrical impartiality. The system ensures provision of justice to every citizen, irrespective of color, creed, caste, political affiliation, socio-economic status, prestige and degree of influence.

 It took 13 long years to give a verdict on Salman’s rash and negligence driving, whether he was drunk or not, a diificult conundrum for the experts and obfuscating the process. He was involved in an accident at a footpath in Mumbai bandra area, where one got killed and four injured. There were two others in the car: Personal Security Officer (PSO) Ravindra Patil of the Mumbai Police (since dead) and Mr. Khan’s friend Kamaal Khan, a singer. Salman fled from the place of the occurrence. The FIR , was filed by the PSO , Ravindra patil at Badra Police Station , mentioned that Salman was driving irresponsibly  and was over indulged with alcohol intake . The Case got registered under Sec 304 ( Culpable homicide not amounting to murder )  / 294 ( Rash and negligent driving ) , along with sec 304 –A (causing death by negligence) and Section 338 (causing grievous hurt by act endangering life or personal safety of others) of IPC and a few Motor Vehicle Act provisions. He was released on bail later on. After 10 days he was again arrested when the IPC section was altered to 304-Part II (culpable homicide not amounting to murder by an act with knowledge that it is likely to cause death, but without any intention to cause death). He was underjudicial custody for 14 days and released on bail . A charge-sheet was filed under sec 304 of the IPC , after investigation. The trial was knowingly delayed / prolonged for 7 years . The Court delivered the judgement of 5 years of rigorous imprisonment , he appealed before  the Mumbai High Court and he was acquitted of all the charges . ( Very funny , I am surprised as a lawyer , the incident happened in 2002  and the sessions trial began in December 2013 )

 The FIR is an unchallenged and scared document and there was no unusual delay in reporting. There is a provision that if the person filing he can explain reasons for the delay to the court’s satisfaction, the report retains its value. There was no delay in this case. The FIR , only describes the basic facts of the incident rather describing everything in details , further it can be investigated thoroughly. It was a misfortune that Patil died before he could be examined before the Sessions Court. Patil was harassed by his own department and some outside elements to make Salman out of the mess. The sudden appearance of one Ashok Singh is quite surprising and a twist in the case, when he told he was driving the Car. According to me, it is an artificial statement and fabricated one. Further according to the defence, the accident happened because the tyre was burst. The motor vehicle inspector investigated the vehicle and noticed that there was puncture in the left wheel of the SUV, which might not lead to such mishappenning. The whole investigation was tawdry, poor-quality, inferior, and low graded. Salman’s verdict or acquittal was unjustified and irrational. He was acquitted under benefit of doubt not a complete and clean acquittal. This shows that there are flaws in our laws and our corrupt lawyers and leaders misuse them according to their whims and fancies and abuse the process of law. There is utter and urgent need to amend the defective Laws and Constitution.

 In a democratic country like India, judiciary plays a vital role in establishing a state of justice. Therefore being the watchdog, they are not allowed to shift their burden to others for their failure to establish an actual State of Justice. It is judiciary on which millions of people have struck their faith of getting justice. It has the capability of imparting justice to the aggrieved. It is that part of our constitution which acts as its Messiah. It is that structure of our society, which cemented its place next to the God and if not properly dispensed will shatter down the entire trinity of democratic instrumentalists with checks balances, parliamentary structure and the judicial facets of our constitution. Generally, aggrieved with lots of pain anguish and hope in their heart approaches the court of law for their grievances to be clarified but at the end of the day the procedural lacuna left them with bare hands. They are denied of their most important right of Justice.

 Take for example The massacre of Niroda Pataya is beyond descriptions, horrible, horrific, horrendous and it shivers down the spine. In the case, 97 people, mostly from minority community (Muslims), were killed in 2002.  The train Carnage at Godhra triggered, a massive riot in Gujrat , but Niroda Patiya is beyond imagination and highest death toll . In this case, all the Hindutva outfits were involved ( RSS, Bajrang Dal, VHP & some BJP leaders ) . They were outraging the modesty of the muslim women, torching women , children by burning them alive. The National Human Right Commission filed a Writ Petition against the Government of Gujrat & Others before the Supreme Court of India, which was decided on 1/5/2009 . The prime accused were Babu Bajrangi , Raju Chobal, Harish Rohera , Kishan Korani , P.J.Rajput active member of VHP and BJP leading a mob of 15,000 to 17,000 , shouting , “ Attack and Kill “ . A special court 32 persons including a former BJP state minister under the then Narendra Modi government, Mayaben Kodnani along with Babu Bajrangi  , a former Bajrang Dal Convenor. 29 persons were acquitted under the benefit of doubt. Those who are convicted were found to be involved in guilty of murder, attempt to murder, conspiracy, spreading enmity and communal hatred and unlawful assembly under various sections of the Indian Penal Code and the Bombay Police Act. Some of them, including Suresh Chara, were also found guilty of rape and molestation. The conviction Kodnani, was a Minister of State for Women and Child Welfare raised a demand for Modi’s resignation on moral grounds . But again it was twisted by Jayanarayan Vyas a spokeperson that Kodnani , a practising gynaecologist , was not a minister that time and her individual action could not interpreted or construed  as  the growing responsibility of the cabinet . The Niroda Patiya post – Godhra episode is one of most cruel some and darkest moments in the history of Independent India, claiming the highest number of bloodshed. This case also got elongated .

 The reputation of India’s judiciary, considered overbearing and democratically unaccountable by many, has taken a knock with the publication of a report by Transparency International (TI) called the “Global Corruption Report”. A survey conducted by the Centre for Media Studies, finds that a very high 77 percent of respondents believe the Indian judiciary is corrupt. Money was paid to the officials in the following proportions: 61 percent to lawyers; 29 percent to court officials; 5 percent to middlemen. In a 12-month period it found was around 580 million dollars of bribes. “This is a wake-up call not just for India’s legal system, but for society and the state itself”, says Upendra Baxi, a highly regarded Indian jurist, former vice-chancellor of Delhi University, and professor at the University of Warwick in Britain. “It confirms what we have known for years and casts a shadow on the integrity of the judiciary. It also calls for urgent, drastic remedial measures.” “The report only covers the lower or subordinate judiciary and excludes the judges of the High Courts (of Indian states) and the (national) Supreme Court. There are credible reports that corruption has permeated the higher judiciary too,” said Baxi.

 Judicial Corruption on rampant. “In India, impeachment is not feasible because it requires a huge (two-thirds) majority in Parliament,” argues Colin Gonsalves, a public interest lawyer with the Human Rights Law Network. “India’s parliamentary elections have produced hung verdicts for years. And it is virtually impossible to muster the numbers necessary for impeaching a judge. In 1993, V. Ramaswamy, a Supreme Court judge, was found culpable by a court committee. But he was politically well-connected and could not be impeached.” “The judicial system, including judges and lawyers, has developed a vested interest in delays as well as corruption; it promotes a collusive relationship between the different players” and this works against the public interest and the citizen’s rights. But even more important is the assault on rights that has occurred under the globalizing neoliberal turn made by India’s higher judiciary .

 As a lawyer I can say , “ Verdict has no meaning it is only for the rich and powerful . “  A question arises, “ Does our justice system give equal treatment to rich and poor, equality of Justice ? Our legal system is based upon dispute resolution between parties and not to determine right or wrong. An individual is either guilty or not guilty. The use of the term “innocent” is vastly incorrect and the general media should cease the practice when reporting.  Within our system, the more money you have, the greater your chances of having access to expert legal advice. Access to savvy legal advice increases your chances of receiving an outcome that is more favorable to you. Lack of money results in the poor rarely have the same level of access to legal services, or favorable outcomes, as the privileged.

 My Experience — 10 years back I and associate Adv Prem Prakash Panigrahi was fighting a case on behalf of the students pursuing MBA distant learning ICFAI, sambalpur . The ICFAI, duped the money of the students and wanted to shift the institute to some other place . On ICFAI side other associate of Lawyers and they  thrive under a political umbrella , there Chief is a National Secretary of a prominent national party, started creating delays… giving time petitions. I was calmly witnessing everything. They gave number of pleas that they were busy in some other courts and couldn’t come, so time may be allowed . I immediately inquired whether the concerned lawyer was in the mentioned court or not. However, after facing much of obstacles I won the cases & the students recovered there hard earned money. They assaulted me because I was creating obstacles in their path. They manipulate judiciary by putting pressure on the lower court through Justices at the upper court. They do under table business. Whenever before approaching for a case, I pray to God , whether I am fighting for a cause or just for earning money. Since 7 years I am working on my conscience. I have faith on my God’s timing. The emphasis is more on winning the case rather than ensuring that justice has been done. It is more important to see how smartly the case has been presented and how strong were the support arguments to influence the concerned honourable judge.

 Our “justice” system is all about lawyers making money, people remaining in elected positions of power, and winning an argument. We are far more concerned about the rights of perpetrators rather than victims and over the years interpreting law has become an exercise in creative writing, such as defining what the word “is” is.  Mr. Nikhil Wagle, an eminent Journalist rightly tweeted, “When u defend corrupt corporates/netas you have no moral right to speak about corruption free India.Big lawyers must understand this.”

 In India, Justice is beyond the reach of most and the right of access to it is not communicated to the citizens properly. In many a circumstances it was found that the litigant who has had access to the court failed to obtain quick relief and for some never have the opportunity even to knock the doors of the court due to ignorance and poverty. If we want justice to be accessible to all, then it must be relieved from the Laissez faire pattern, where justice like other commodity can be purchased and initiative must be taken to educate the populace.

 Quest for justice has nothing to do with procedure or jurisdictional aspect rather it cares for its speedy disposal. Delay in disposal of cases is considered as one of the most vexed and worrying problem. It is the code of procedures, which makes it so worse. However personality likesNani Phalkiwala opined that” Justice in common parlance is considered as blind but in India it is lame too and hobbles on crutches. It is on the verge of collapse with more than 30 million cases clogging the system. There are cases that take so much of time that even a generation is too short to get any type of redressal.

 India is free from the so called British Rule. From Cricket to

Judiciary India excels even Great Britain today. Naturally we are more British today than ever before. India badly needs today Indian Home Rule than ever before. The stumbling block for this Home Rule will be right from Indian Judiciary to Indian Lawyers down to political and apolitical elites sitting in National Capital Territory Delhi and State Capitals and exploiting the millions denizens. A Judge needs vacation. A Lawyer needs vacation. Both needs court rooms and files. Judges need salary enhancements and privileges and pensions. Lawyers need their fees whether the case is admitted or not and the judgment is in the litigants favor or not. They can dare for a Court Bandh or National Bandh. Where courts are busy in attending the appeals of their lower ones, and other such issues far away from the scope of the courts, humanity somewhere is left buried below the bunch of files which no one dares to uncover or we can say do anyone wants to extract these files out unless some political issue is attached to it.

 Thus courts and judicial system transpire lifeline of every nation by providing breathing space and steadfast foundation for the victims and the feeble. The social order gets reinforced by excellence of judicial system and so is the case of moral values.

Good laws have their origins in bad morals. – Albert Einstein

 Siddhartha Shankar Mishra,

The author is a Lawyer 

Sambalpur , Odisha

LIFE IS A TEACHER

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LIFE IS A TEACHER

Life is a great teacher.  Life continues to teach through the various experiences as we grow.  From birth till death. Lessons that are not learnt well are repeated again and again. We must strive for progress not perfection. This is evolution.

I would like to share with you a quote by Osho that really spoke to my heart and inspired me this morning: “Be grateful to everyone, because everybody is creating a space for you to be transformed – even those who think they are obstructing you, even those whom you think are enemies. Your friends, your enemies, good people and bad people, favorable circumstances, unfavorable circumstances – all together they are creating the context in which you can be transformed and become a Buddha. Be grateful to all. To those who have helped, to those who have hindered, to those who have been indifferent. Be grateful to all, because altogether they are creating the contexts in which Buddhas are born – in which you can become a Buddha.” We are all unique expressions of the whole; essentially one soul. They are all teachers.

Life is like a traffic jam. We are all in Chaos. There are billboards advertisements making us aware where to pause and halt while carrying suitcase and baggage of life – experiences, memories and musings. The clock when stop, we don’t know. There are many roses and thorns in this solitary journey. Success and failure are all metaphors and perceptions.

When hit by the rock bottom – we must say, “Hey, baby, get up, never give up , first thing first , pain is the touch stone of success. It is a celebration in fact. Pain is growth, pain is celebration. And be grateful for the storms because the storm has made you the best sailor.

ye safar bahut hai kathin magar na udaas ho mere hamasafar , nahi rahanevaali ye mushkile ye hai agale mod pe mazile , meri baat kaa tu yakin kar meri baat kaa tu yakin kar,na udaas ho mere hamasafar !

 WOW - Construct A Story

 

This post is a part of Write Over the Weekend, an initiative for Indian Bloggers by BlogAdda.’

My Teens … My School Days are best age of my life

My Teens … My School Days are best age of my life

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How strange is the lot of us mortals! Each of us is here for a brief sojourn; for what purpose we know not, though sometimes sense it. But we know from daily life that we exist for other people, first of all for whose smiles and well- being our own happiness depends. Leaving high school, the most valuable thing I had taken with me is the memories and I want to thank every person for playing a part in them, to my friends, you have gone beyond the limits of what one has to do for another, my life will be forever richer and more beautiful because you were a part of it, I love you with all my heart, to those who were my slap in the face, to the close-minded or misunderstanding, to those who broke my heart, you all changed me to become the person I wanted to be, I am stronger because of the trials you had put my through and no matter what you had done to me, you had unknowingly done so much for me, to every person who inspired me by the way they lived their life, to those who were my shoulder to cry on, to those I found myself with in my moments of pure joy, to those who have understood me, to the people I shared inside jokes with, to anyone who had held my hand, or for that matter.

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Be aware of how you talk to yourself, whether you’re telling yourself I can or I can’t. Then let the words be filled with cheerful confidence. Recognize any feelings that prevent you from believing in yourself. Then let those feelings go. Let go of fear and feeling overwhelmed. You can learn the new task. You can harmonize with your new boss. You can learn to take care of yourself. You can. You can. And you will. You can and will grow into this role. You’re not defective. Neither is your shovel. Grab it, and dig in. Let the changes happen. Take extra loving care of yourself. Be attentive to what you need. The magic isn’t gone; it hasn’t disappeared. You’re just going through a shift. That means things are moving, and movement is good. More language of letting go. You’re learning something new.

 

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This post is a part of Write Over the Weekend, an initiative for Indian Bloggers by BlogAdda.’

Looking outside my Window

Looking outside my Window

As I look outside my window, I find glimmer of hopes. Living one day at a time on daily basis keeps me going. Appreciate being human on this earth, not the consumer goods you acquire with currency. ( the pigeon on my room window and the honest friend in the water ) . Doing good to others is not a duty, it is a joy, for it increases our own health and happiness.

( the pigeon on my room window )

The heart has a window too. In this cacophony of life , retrace and competition , we are lacking sensibilities. The life I am so busy planning and worrying about will likely not be as I imagine it. I will have forgotten something or an unforeseen circumstance will alter my plan. Did I know ten years ago that this is what I would be doing now? If only I could let go of the constant low level of anxiety about my unknown future, I am sure today would feel longer, deeper and less complicated. I can only solve today – it is the only time that is actually within my reach.

(I found the nest of sparrow on the bar of the window screen in the morning . This makes my day . )

In the morning, I wake up and say, “God, thank You for another beautiful day. I commit this day, my plans and my future into your hands.” When I start the day like this, I am acknowledging God. He promises to crown your day with success. Before you go to bed, I review my entire day and say : “Lord, thank You for a good night’s rest.” When you’re acknowledging Him in all your ways, He promises to direct your paths. He promises to lead and guide you into paths of peace, joy and everlasting life and I forgive myself for the mistakes I have committed consciously or unconsciously. This makes me free.

 

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(my  honest friend in the water tank  )

We are our own rescuers. Our relationships will improve dramatically when we stop rescuing others and stop expecting them to rescue us.

This post is a part of Write Over the Weekend, an initiative for Indian Bloggers by BlogAdda.’

Life is a revolution . Zindagi har kadam ek nayi jung hai

Life is a revolution …..

This lyrics goes along with me ….  ( 20914678_10213273118198950_7747386639508583132_n… Life at every step is a new battle… Hausla na chhod, kar saamna jahan ka
Hausla na chhod, kar saamna jahan ka,Woh badal raha dekh rang aasman ka,Rang aasman ka,Yeh shiqast ka nahi, yeh fateh ka rang hai,Zindagi har kadam ek nayi jung hai (Don’t give up and fight the world, Look, the colour of the sky is changing, This is the colour of victory and not defeat).

This is not only a song to me, a part me too. Life is a continuous battle. Every favourable situation weakens your mind, and odds strengthen you. We lack infirmity of will. But it is ok. We rise, we fall but we have to stand. This song not only motivates me but also hit my soul hard not to stop. I am a lawyer; I never fight in the street. But there are some hooligans /criminal lawyers who assaulted me in the street. I will fight with them still my last breath. They started the war in the street but I will end them at Apex.

We will not achieve, we will not master that which goes unplanned in our dream world. We imagine first, and then we conceive the execution of a plan. Our minds prepare us for success. They can also prepare us for failure if we let our thoughts become negative. In this path of my recovery, I have to rigorously honest. If I at all cheat, I will cheat to myself. Life is a continuous sadhana. In the words Paramhamsa Satyananda , “Assaults , abuses , injustices, taunts , harassments , discomforts , etc . have strengthen my personality . Let me – Adapt, Accept, Accommodate, . Bear Insult, Bear Injury; highest sadhana.  Be fearless, Cowards never acquire power of life.”

War is justified only when it is meant to fight evil and injustice, not for the purpose of aggression or terrorizing people. The real war is within … change of thoughts and our personalities. A rebel reforms himself. Everything in Mahabharata is symbolic. Krishna awakens Arjuna … how to control the senses and emotions through Yoga. It is an inner awakening rather I can say. It is to face the inner war within infected by self –centeredness, jealousy, self seeking, self-delusion, anger , envy and prideful self Confidence, Ego and Big I .

Bhagavad Gita enlightens us how to you face and overcome fears/worries/social pressures/envy/Jealousy. It is not a philosophy a practical tool. An action taken too soon can be as ineffective as one taken too late. Itcan backfire and cause more problems than it solves. Usually, when we wait until the time is right – sometimes only a matter of minutes or hours – the discomfort dissolves, and we’re empowered to accomplish what
we need to do.

God grant me the Serenity to accept the things I cannot change; Courage to change the things I can; and Wisdom to know the difference. Thy will, not mine, be done.

20914678_10213273118198950_7747386639508583132_nThis post is a part of Write Over the Weekend, an initiative for Indian Bloggers by BlogAdda.’

30 Minutes and Beyond

30 Minutes and Beyond

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My theory, my point, my constitution, an independent viewpoint. What to write what not to write, thoughts come and evaporate. Writing needs a flow and a passion. Some reject, some accept, some edit but just let it happen. Most of the eminent personalities of the world have faced rejection but they were persistent in their effort  and that matters in their life.

Adversity and rejection creates mental strength, equilibrium and stability, while favourable situations weaken the mind. Only the progress made in the face of opposition is everlasting. I never fix up a limit to my writing. Whatever comes to my mind I jot it in my diary – a pocket size. Then later on I try to elaborate.

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Serious writers like Lt Uma Shankar Panda – an Odia Literature writer didn’t wait to be inspired. Serious writers roll up their sleeves and get down to the business of writing. According to him “Being inspired” smacks of amateurish, daydream passivity, the notion that some supernatural presence must appear before us before the words can flow. He draws inspirations basically from nature, human psychology, and the human behaviour. To be inspired by people is to be continually rewarded with story ideas. People are walking, talking stories. Everyone we encounter has the potential for contributing to our understanding of human nature—if we allow ourselves to be inspired by human nature in all its diversity. Inspiration matters because it prods us to traverse the full spectrum of human experience. An important part of what it means to be a writer is to become so turned on to the business of being alive, to be so completely inspired by life, that you will harvest ideas for writing everywhere—from books, from people, from music and other art forms, from the natural world, and most of all from your own inner resources. There are ripples created in the mind and heart which is expressed in the themes of poetries and other prose writings such as stories, novels and plays. He was very frank about it and declared openly. His advice to Young writers, ” He replied , “ A progressive trend is flourishing. Mindset style of work is gradually changing with the influence of social, political and life style of the countrymen at present.

To me writing is a journey. Meditating on my writing is injurious to health. Just read it and toss it away from your mind. This is absolutely bizarre. But still I fix up the timer and wrote this nonsensical stuff. I hope here from my bloggers and writers friends sooner.

This post is a part of Write Over the Weekend, an initiative for Indian Bloggers by BlogAdda.’