Patna Law Notes

  History and Origin of the Concept The Doctrine of Separation of Powers is a crucial component of a constitutional form of government. It first developed and flourished within the American constitution. Some commentators have considered its wide acceptability the chief reason why the administrative process was relatively slow to develop in the USA. The Doctrine of Separation was conceived in its modern form by the French philosopher Montesquieu within the intellectual milieu that prevailed during the period preceding the French Revolution. He emphasized the significance of keeping the three branches of the modern state- the judiciary, executive and legislative separate from each other. Montesquieu gave voice to an emerging political doctrine in late eighteenth-century France that considered too much concentration of political power in the hands of one individual a factor of tyranny and arbitrariness. It was argued that each of these organs must confine its area of authority to o

In a surprise move, the Karnataka government has lent support to the prosecution of a husband for the rape of his wife. In an affidavit filed at the Supreme Court, the state government said, “The High Court of Karnataka has considered all the questions of law involved in the present petition and it does not require any interference by this Court.” This is a significant development because, in an earlier case of a similar kind challenging exception 2 to Section 375 IPC, filed before the Delhi High Court, the BJP-led Central Government had refrained from taking a clear stand on criminalizing marital rape. Earlier, the Karnataka High Court refused to quash the FIR for marital rape on the ground that it falls under exception 2 to section 375. Pronouncing the accused guilty a single bench of Justice M Nagaprasanna observed that exception 2 to Section 375 of the Indian Penal Code, which exempts a husband from the offence of rape against his wife ‘is not absolute…a man is a man; an act is

Principles of natural justice form the bedrock and desideratum of our legal system. As per the principle of Audi Alteram Partem , nobody can be condemned without being given a fair chance to be heard. The right to a fair hearing is an indispensable component of a fair trial and the foundation of a legal system based on the principles of natural justice. In the following, we would discuss the norms and components of a fair hearing. Over the course of decades, through their successive judgments, Courts have elaborated and developed the principle of Audi Alteram Partem to construe a whole code of procedural norms or ‘administrative due process’. This concept comprises many norms, most of which are fluid and elastic. Being an abstract principle, rather than a specific law, Audi Alteram Partem could mean different things depending on the context. As a result, the concept defies a strict definition. Not only do the norms of fair hearing vary from body to body but also vary from situation to

The institution of marriage in Muslim law aims to regulate sexual norms, procreation and upbringing of children, and the creation of family units, which have been considered the basic unit of society in Islam. Most Islamic thinkers have considered marriage and having children to be a sacrament and a holy duty. Some of the important sources of Islamic law are as follows- Quran, Ijma (consensus), Qiyas (Analogy), Urf (Custom), Precedent, Equity, and Legislations etc   There are four major Sunni schools of jurisprudence Hanafi Hanbali Maliki And Shafai The four schools have interacted and debated with each other for centuries and recognize each other’s validity. The Hanafi school is dominant in India. Essentials of a Nikah Parties must have the capacity to contract There should be a proposal (Ijab) and its acceptance (Qubool) Both parties must consent freely There must be a consideration (‘Mahr’) offered by the groom to the bride There should not be any legal i

  The Constitution of India guarantees the freedom of conscience and the right to profess, practice, and propagate religion as a fundamental right. The creation and the continued existence of personal laws for respective religious groups have their basis in this fundamental right. As things stand now, with respect to cases arising out of family matters, all persons professing the Muslim faith are governed by Muslim personal law. It consists of provisions regarding marriage, dower, divorce, will, and, maintenance, etc. Under Muslim law, the dower is referred to as ‘Mahr’. It is a stipulated amount that the husband must pay to his wife at the time of marriage. In the following, we will explore the concept of ‘Mahr’ in detail. Historical origins of ‘Mahr’ In pre-Islamic Arabia, the institution of marriage is said to have been chaotic and oppressive to women. Men could denounce their marriages without providing for the maintenance of their wives. Typically, as per the custom of the tim

  Section 102 of the CrPC empowers a police officer to seize ‘any property’ that is either stolen or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of an offence. This section also requires the seizing police officer to forthrightly report any such seizure to a Magistrate having appropriate jurisdiction over the matter involved. It is a well-settled position of the law that the bank accounts of the accused and his relatives fall under the purview of ‘any property’ as per section 102 CrPC. However, the Supreme Court has clarified that it would be too harsh and inappropriate to seize the immovable property of the accused based merely on suspicion. In general, the police have been evoking this section to freeze bank accounts linked to cases of online fraud, financial scams and money laundering. It is understood that freezing suspicious accounts prevents scamsters from transferring money to safer locations beyond the re