Live in Relation in the light of latest Judbment from Supreme Court of India
IN THE SUPREME COURT OF INDIA
Bench: M Katju, T Thakur
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2028-2029__OF 2010
[Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]
D. Velusamy -versus- D. Patchaiammal
Judgment Delivered on 21 October, 2010
Cites 17 docs - [View All]
The Code Of Criminal Procedure, 1973
The Protection Of Women From Domestic Violence Act, 2005
The Indian Penal Code, 1860
Section 125 in The Code Of Criminal Procedure, 1973
Section 2(s) in The Code Of Criminal Procedure, 1973
JUDGMENT
Markandey Katju, J.
1. Leave granted.
2. Heard learned counsel for the appellant. None has appeared for the respondent although she has been served notice. We had earlier requested Mr. Jayant Bhushan, learned Senior counsel to assist us as Amicus Curiae in 2 the case, and we record our appreciation of Mr. Bhushan who was of considerable assistance to us.
3. These appeals have been filed against the judgment of the Madras High Court dated 12.10.2009.
4. The appellant herein has alleged that he was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is now studying in an Engineering college at Ooty. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore.
5. It appears that the respondent-D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant herein on 14.9.1986 and since then the appellant herein and she lived together in her father's house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondent's father and started living in his native place, but would visit the respondent occasionally.
6. It is alleged that the appellant herein (respondent in the petition under Section 125 Cr.P.C.) deserted the respondent herein (petitioner in the proceeding under Section 125 Cr.P.C.) two or three years after marrying her in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did not have any kind of livelihood and she is unable to maintain herself whereas the respondent (appellant herein) is a Secondary Grade Teacher drawing a salary of Rs.10000/- per month. Hence it was prayed that the respondent (appellant herein) be directed to pay Rs.500/- per month as maintenance to the petitioner.
7. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14.9.1986, and that he left her after two or three years of living together with her in her father's house.
8. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein.
9. In his counter affidavit filed by the appellant herein before the Family Court, Coimbatore, it was alleged that the respondent (appellant herein) was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had a male child, who is studying in C.S.I. Engineering college at Ooty. To prove his marriage with Lakshmi the appellant produced the ration card, voter's identity card of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc.
10. The learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court in the impugned judgment.
11. In our opinion, since Lakshmi was not made a party to the proceedings before the Family Court Judge or before the High Court and no notice was issued to her hence any declaration about her marital status vis-`- vis the appellant is wholly null and void as it will be violative of the rules of natural justice. Without giving a hearing to Lakshmi no such declaration could have validly be given by the Courts below that she had not married the appellant herein since such as a finding would seriously affect her rights. And if no such declaration could have been given obviously no declaration could validly have been given that the appellant was validly married to the respondent, because if Lakshmi was the wife of the appellant then without divorcing her the appellant could not have validly married the respondent.
12. It may be noted that Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word `wife' has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows : "Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."
13. In Vimala (K) vs. Veeraswamy (K) [(1991) 2 SCC 375], a three- Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court held: "..the object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision."
14. In a subsequent decision of this Court in Savitaben Somabhat Bhatiya vs. State of Gujarat and others, AIR 2005 SC 1809, this Court held that however desirable it may be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of `wife'. The Bench held that this inadequacy in law can be amended only by the Legislature.
15. Since we have held that the Courts below erred in law in holding that Lakshmi was not married to the appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi.
16. However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005. Section 2(a) of the Act states :
"2(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent";
Section 2(f) states :
"2(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family"; Section 2(s) states :
"2(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household."
Section 3(a) states that an act will constitute domestic violence in case it-
"3(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;" or
(emphasis supplied)
17. The expression "economic abuse" has been defined to include : "(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance".
(emphasis supplied)
18. An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the application under Section 12(1).
19. Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.
20. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression `domestic relationship' includes not only the relationship of marriage but also a relationship `in the nature of marriage'. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage'. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.
21. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act. 1
22. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been commented upon by this Court in S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 (vide para 31).
23. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him.
24. In USA the expression `palimony' was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see `palimony' on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin (1976) 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.
25. Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.
26. In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him. There was no sign of a stable and significant cohabitation between the two.
27. However, the New Jersey Supreme Court in Devaney vs. L' Esperance 195 N.J., 247 (2008) held that cohabitation is not necessary to claim palimony, rather "it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony". A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.
28. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements. 1
29. Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed.
30. However, a meretricious contract exclusively for sexual service is held in all US Courts as invalid and unenforceable.
31. In the case before us we are not called upon to decide whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral, since no such case was set up by the respondent in her petition under Section 125 Cr.P.C.
32. Some countries in the world recognize common law marriages. A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry (see details on Google).
33. In our opinion a `relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married :-
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
(see `Common Law Marriage' in Wikipedia on Google) In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'.
34. In our opinion not all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a `keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage'
35. No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression `relationship in the nature of marriage' and not `live in relationship'. The Court in the grab of interpretation cannot change the language of the statute.
36. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy's novel `Anna Karenina', Gustave Flaubert's novel `Madame Bovary' and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.
37. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.
38. Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in holding that the appellant was not married to Lakshmi without even issuing notice to Lakshmi. Hence this finding has to be set aside and the matter remanded to the Family Court which may issue notice to Lakshmi and after hearing her give a fresh finding in accordance with law. The question whether the appellant was married to the respondent or not can, of course, be decided only after the aforesaid finding.
39. There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage. In our opinion such findings were essential to decide this case. Hence we set aside the impugned judgment of the High Court and Family Court Judge, Coimbatore and remand the matter to the Family Court Judge to decide the matter afresh in accordance with law and in the light of the observations made above. Appeals allowed.
....................................J.
(MARKANDEY KATJU)
.....................................J.
(T. S. THAKUR)
NEW DELHI;
21st OCTOBER, 2010
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Tuesday, October 4, 2011
Husband's successors are the successors of wife's intested property though, she didn't live them for a day -Supreme Court of India
Husband's successors are the successors of wife's intested property though, she didn't live them for a day -Supreme Court of India
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3241 OF 2009
[Arising out of Special Leave Petition (Civil) No. 460 of 2008]
OMPRAKASH & ORS.- V/S - RADHACHARAN & ORS.
JUDGMENT By- S.B. Sinha, J.
1. Leave granted.
2. One Smt. Narayani Devi was married to one Dindayal Sharma in the year 1955. She became widow within three months of her marriage. Concededly, she was driven out of her matrimonial home immediately after the death of her husband. After that she never stayed in her matrimonial home. At her parental home, she was given education. She got an employment. She died intestate on 11.7.1996. She had various bank accounts; she left a huge sum also in her provident fund account.
3. Ramkishori, mother of Narayani, filed an application for grant of succession certificate in terms of Section 372 of the Indian Succession Act. Respondents herein also filed a similar application. It now stands admitted that all her properties were self acquired.
4. The question which arose for consideration before the courts below as also before us is as to whether sub-Section (1) of Section 15 of the Hindu Succession Act, 1956 (for short, "the Act") or sub-Section (2) thereof would be applicable in the facts and circumstances of this case.
Section 15 of the Act reads as under:
"15 - General rules of succession in the case of
female Hindus. - (1) The property of a female
Hindu dying intestate shall devolve according to
the rules set out in section 16.--
(a) firstly, upon the sons and daughters
(including the children of any pre-deceased son or
daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-
section (1),--
(a) any property inherited by a female Hindu
from her father or mother shall devolve, in the
absence of any son or daughter of the deceased
(including the children of any pre-deceased son or
daughter) not upon the other heirs referred to in
sub-section (1) in the order specified therein, but
upon the heirs of the father; and
(b) any property inherited by a female Hindu
from her husband or from her father-in-law shall
devolve, in the absence of any son or daughter of
the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs
referred to in sub-section (1) in the order specified
therein, but upon the heirs of the husband."
5. There is no doubt or dispute that the properties of the deceased were self-acquired ones and were not inherited from her parents' side. Appellants before us are her brothers, the original applicant being the mother of the deceased having died. Respondents are the sons of sister of the Narayani's husband.
6. Mr. N.R. Choudhary, learned counsel appearing on behalf of the appellant would contend that in a case of this nature where the husband of the deceased or her in-laws had not made any contribution towards her education or had not lent any support during her life time, sub-Section (2) of Section 15 of the Act should be held to be applicable. It was urged that the Parliamentary intent as contained in clause (a) of sub-Section (2) of Section 15 of the Act should be the guiding factor for interpreting the said provision.
7. Mr. Arvind V. Savant, learned Senior Counsel appearing on behalf of the respondent, however, would support the impugned judgment.
8. Section 15 provides for the general rules of succession in the case of female Hindus. It lays down the mode and manner in which the devolution of interest of a female shall take place. Section 16 provides for the order of succession and manner of distribution amongst the heirs of a female Hindu, stating that the same shall be according to the rules specified therein. It reads as under:
"Rule 1.--Among the heirs specified in sub-
section (1) of section 15, those in one entry shall
be preferred to those in any succeeding entry and
those including in the same entry shall take
simultaneously.
Rule 2.--If any son or daughter of the intestate had
pre-deceased the intestate leaving his or her own
children alive at the time of the intestate's death,
the children of such son or daughter shall take
between them the share which such son or
daughter would have taken if living at the
intestate's death.
Rule 3.--The devolution of the property of the
intestate on the heirs referred to in clauses (b), (d)
and (e) of sub-section (1) and in sub-section (2) of
section 15 shall be in the same order and according
to the same rules as would have applied if the
property had been the father's or the mother's or
the husband's as the case may be, and such person
had died intestate in respect thereof immediately
after the intestate's death."
9. It has not been disputed that the respondents are the heirs and legal representatives of Dindayal, husband of Narayani. Sub-Section (1) of Section 15 lays down the ordinary rule of succession. Clause (a) of sub- Section (2) of Section 15 providing for a non-obstante clause, however, carves out an exception viz. when the property is devolved upon the deceased from her parents' side, on her death the same would relate back to her parents' family and not to her husband's family. Similarly, in a case where she had inherited some property from her husband or from her husband's family, on her death the same would revive to her husband's family and not to her own heirs. The law is silent with regard to self- acquired property of a woman. Sub-section (1) of Section 15, however, apart from the exceptions specified in sub-section (2) thereof does not make any distinction between a self-acquired property and the property which she had inherited. It refers to a property which has vested in the deceased absolutely or which is her own. The self-acquired property of a female would be her absolute property and not the property which she had inherited from her parents.
10. In that view of the matter, we are of the opinion that sub-Section (1) of Section 15 of the Act would apply and not the sub-Section (2) thereof.
This is a hard case. Narayani during her life time did not visit her in-laws' place. We will presume that the contentions raised by Mr. Choudhury that she had not been lent any support from her husband's family is correct and all support had come from her parents but then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision which is otherwise impermissible. It is now a well settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.
In M.D., H.S.I.D.C. and Ors. vs. Hari Om Enterprises and Anr [2008 (9) SCALE 241], this Court held:
"54. This Court applied the doctrine of
proportionality having regard to a large number of
decisions operating in the field. This Court,
however, also put a note of caution that no order
should be passed only on sympathy or sentiment."
In Subha B. Nair & Ors. vs. State of Kerala & Ors. [(2008) 7 SCC 210], this Court held:
"21. This Court furthermore cannot issue a
direction only on sentiment/sympathy."
In Ganga Devi vs. District Judge, Nainital & Ors. [(2008) 7 SCC 770], this Court held:
"22. The court would not determine a question
only on the basis of sympathy or sentiment. Stricto
sensu equity as such may not have any role to
play."
If the contention raised by Mr. Choudhury is to be accepted, we will have to interpret sub-section (1) of Section 15 in a manner which was not contemplated by the Parliament. The Act does not put an embargo on a female to execute a will. Sub-section (1) of Section 15 would apply only in a case where a female Hindu has died intestate. In such a situation, the normal rule of succession as provided for by the statute, in our opinion, must prevail.
For the aforementioned purpose, the golden rule of interpretation must be applied.
11. This Court in Bhagat Ram (Dead) vs. Teja Singh [(1999) 4 SCC 86], held as under:
"6. On perusal of the two Sub-sections we find
that their spheres are very clearly marked out. So
far Sub-section (1), it covers the properties of a
female Hindu dying intestate. Sub-section (2)
starts with the words 'Notwithstanding anything
contained in Sub-section (1)'. In other words, what
falls within the sphere of Sub-section (2), Sub-
section (1) will not apply. We find that Section
15(2)(a) uses the words 'any property inherited by
a female Hindu from her father or mother'. Thus
property inherited by a female Hindu from her
father and mother is carved-out from a female
Hindu dying intestate. In order words any property
of female Hindu, if inherited by her from her father
or mother would not fall under Sub-section (1) of
Section 15. Thus, property of a female Hindu can
be classified under two heads : Every property of a
female Hindu dying intestate is a general class by
itself covering all the properties but Sub-section
(2) excludes out of the aforesaid properties the
property inherited by her from her father or
mother.
7. In addition, we find the language used in
Section 15(1) read with Section 16 makes it
clearly, the class who has to succeed of property of
Hindu female dying intestate. Sub-section (1)
specifically state that the property of a female
Hindu dying intestate shall devolve according to
the rules set out in Section 16. So, in case Sub-
section (1) applies, then after the death of Santi,
Indro can not inheritance by succession but it
would go to the heirs of the pre-deceased husband
of Santi."
12. For the aforementioned reasons, we find no merit in this appeal. The appeal is dismissed accordingly. However, in the facts and circumstances of this case, there shall be no order as to costs.
.....................................J.
[S.B. Sinha]
.....................................J.
[Dr. Mukundakam Sharma]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3241 OF 2009
[Arising out of Special Leave Petition (Civil) No. 460 of 2008]
OMPRAKASH & ORS.- V/S - RADHACHARAN & ORS.
JUDGMENT By- S.B. Sinha, J.
1. Leave granted.
2. One Smt. Narayani Devi was married to one Dindayal Sharma in the year 1955. She became widow within three months of her marriage. Concededly, she was driven out of her matrimonial home immediately after the death of her husband. After that she never stayed in her matrimonial home. At her parental home, she was given education. She got an employment. She died intestate on 11.7.1996. She had various bank accounts; she left a huge sum also in her provident fund account.
3. Ramkishori, mother of Narayani, filed an application for grant of succession certificate in terms of Section 372 of the Indian Succession Act. Respondents herein also filed a similar application. It now stands admitted that all her properties were self acquired.
4. The question which arose for consideration before the courts below as also before us is as to whether sub-Section (1) of Section 15 of the Hindu Succession Act, 1956 (for short, "the Act") or sub-Section (2) thereof would be applicable in the facts and circumstances of this case.
Section 15 of the Act reads as under:
"15 - General rules of succession in the case of
female Hindus. - (1) The property of a female
Hindu dying intestate shall devolve according to
the rules set out in section 16.--
(a) firstly, upon the sons and daughters
(including the children of any pre-deceased son or
daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-
section (1),--
(a) any property inherited by a female Hindu
from her father or mother shall devolve, in the
absence of any son or daughter of the deceased
(including the children of any pre-deceased son or
daughter) not upon the other heirs referred to in
sub-section (1) in the order specified therein, but
upon the heirs of the father; and
(b) any property inherited by a female Hindu
from her husband or from her father-in-law shall
devolve, in the absence of any son or daughter of
the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs
referred to in sub-section (1) in the order specified
therein, but upon the heirs of the husband."
5. There is no doubt or dispute that the properties of the deceased were self-acquired ones and were not inherited from her parents' side. Appellants before us are her brothers, the original applicant being the mother of the deceased having died. Respondents are the sons of sister of the Narayani's husband.
6. Mr. N.R. Choudhary, learned counsel appearing on behalf of the appellant would contend that in a case of this nature where the husband of the deceased or her in-laws had not made any contribution towards her education or had not lent any support during her life time, sub-Section (2) of Section 15 of the Act should be held to be applicable. It was urged that the Parliamentary intent as contained in clause (a) of sub-Section (2) of Section 15 of the Act should be the guiding factor for interpreting the said provision.
7. Mr. Arvind V. Savant, learned Senior Counsel appearing on behalf of the respondent, however, would support the impugned judgment.
8. Section 15 provides for the general rules of succession in the case of female Hindus. It lays down the mode and manner in which the devolution of interest of a female shall take place. Section 16 provides for the order of succession and manner of distribution amongst the heirs of a female Hindu, stating that the same shall be according to the rules specified therein. It reads as under:
"Rule 1.--Among the heirs specified in sub-
section (1) of section 15, those in one entry shall
be preferred to those in any succeeding entry and
those including in the same entry shall take
simultaneously.
Rule 2.--If any son or daughter of the intestate had
pre-deceased the intestate leaving his or her own
children alive at the time of the intestate's death,
the children of such son or daughter shall take
between them the share which such son or
daughter would have taken if living at the
intestate's death.
Rule 3.--The devolution of the property of the
intestate on the heirs referred to in clauses (b), (d)
and (e) of sub-section (1) and in sub-section (2) of
section 15 shall be in the same order and according
to the same rules as would have applied if the
property had been the father's or the mother's or
the husband's as the case may be, and such person
had died intestate in respect thereof immediately
after the intestate's death."
9. It has not been disputed that the respondents are the heirs and legal representatives of Dindayal, husband of Narayani. Sub-Section (1) of Section 15 lays down the ordinary rule of succession. Clause (a) of sub- Section (2) of Section 15 providing for a non-obstante clause, however, carves out an exception viz. when the property is devolved upon the deceased from her parents' side, on her death the same would relate back to her parents' family and not to her husband's family. Similarly, in a case where she had inherited some property from her husband or from her husband's family, on her death the same would revive to her husband's family and not to her own heirs. The law is silent with regard to self- acquired property of a woman. Sub-section (1) of Section 15, however, apart from the exceptions specified in sub-section (2) thereof does not make any distinction between a self-acquired property and the property which she had inherited. It refers to a property which has vested in the deceased absolutely or which is her own. The self-acquired property of a female would be her absolute property and not the property which she had inherited from her parents.
10. In that view of the matter, we are of the opinion that sub-Section (1) of Section 15 of the Act would apply and not the sub-Section (2) thereof.
This is a hard case. Narayani during her life time did not visit her in-laws' place. We will presume that the contentions raised by Mr. Choudhury that she had not been lent any support from her husband's family is correct and all support had come from her parents but then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision which is otherwise impermissible. It is now a well settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.
In M.D., H.S.I.D.C. and Ors. vs. Hari Om Enterprises and Anr [2008 (9) SCALE 241], this Court held:
"54. This Court applied the doctrine of
proportionality having regard to a large number of
decisions operating in the field. This Court,
however, also put a note of caution that no order
should be passed only on sympathy or sentiment."
In Subha B. Nair & Ors. vs. State of Kerala & Ors. [(2008) 7 SCC 210], this Court held:
"21. This Court furthermore cannot issue a
direction only on sentiment/sympathy."
In Ganga Devi vs. District Judge, Nainital & Ors. [(2008) 7 SCC 770], this Court held:
"22. The court would not determine a question
only on the basis of sympathy or sentiment. Stricto
sensu equity as such may not have any role to
play."
If the contention raised by Mr. Choudhury is to be accepted, we will have to interpret sub-section (1) of Section 15 in a manner which was not contemplated by the Parliament. The Act does not put an embargo on a female to execute a will. Sub-section (1) of Section 15 would apply only in a case where a female Hindu has died intestate. In such a situation, the normal rule of succession as provided for by the statute, in our opinion, must prevail.
For the aforementioned purpose, the golden rule of interpretation must be applied.
11. This Court in Bhagat Ram (Dead) vs. Teja Singh [(1999) 4 SCC 86], held as under:
"6. On perusal of the two Sub-sections we find
that their spheres are very clearly marked out. So
far Sub-section (1), it covers the properties of a
female Hindu dying intestate. Sub-section (2)
starts with the words 'Notwithstanding anything
contained in Sub-section (1)'. In other words, what
falls within the sphere of Sub-section (2), Sub-
section (1) will not apply. We find that Section
15(2)(a) uses the words 'any property inherited by
a female Hindu from her father or mother'. Thus
property inherited by a female Hindu from her
father and mother is carved-out from a female
Hindu dying intestate. In order words any property
of female Hindu, if inherited by her from her father
or mother would not fall under Sub-section (1) of
Section 15. Thus, property of a female Hindu can
be classified under two heads : Every property of a
female Hindu dying intestate is a general class by
itself covering all the properties but Sub-section
(2) excludes out of the aforesaid properties the
property inherited by her from her father or
mother.
7. In addition, we find the language used in
Section 15(1) read with Section 16 makes it
clearly, the class who has to succeed of property of
Hindu female dying intestate. Sub-section (1)
specifically state that the property of a female
Hindu dying intestate shall devolve according to
the rules set out in Section 16. So, in case Sub-
section (1) applies, then after the death of Santi,
Indro can not inheritance by succession but it
would go to the heirs of the pre-deceased husband
of Santi."
12. For the aforementioned reasons, we find no merit in this appeal. The appeal is dismissed accordingly. However, in the facts and circumstances of this case, there shall be no order as to costs.
.....................................J.
[S.B. Sinha]
.....................................J.
[Dr. Mukundakam Sharma]
Section 125(1)(c) Cr.P.C. - refusing maintenance to unmarried major daughter
Section 125(1)(c) Cr.P.C. - refusing maintenance to unmarried major daughter - Notices issued to Govts. why this clause should remain on the statute.
This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 46
Criminal Misc. Application No. 1760 of 2008
Smt. Raj Kumari Awasthi and another...............................Applicants
Versus
State of U.P. and another...........................................Opposite parties
********
Hon'ble Amar Saran, J.
Heard Shri Saurabh Srivastava, learned counsel for the applicants and Shri Shashi Dhar Tripathi, learned Additional Government Advocate.
The applicants who are the wife and daughter of O.P. No. 2 have preferred this application under section 482 Cr.P.C. challenging the order dated 29.11.2007 whereby the learned Additional Chief Family Court, Kanpur Nagar has modified his order dated 9.5.06 granting maintenance to both the applicants at the rate of Rs. 700 per month in proceedings under section 127 Cr.P.C in Case No. 171 of 2006 and limited the grant of maintenance to his daughter, applicant Akansha till the date she turns major, i.e. till 21.8.06 whilst upholding the grant of maintenance to his wife, applicant Smt. Raj Kumari Awasthi
This part of the order was assailed by the applicants by arguing that under section 127 of the Code, grant of maintenance cannot be denied to an unmarried daughter, who has no source of income whatsoever to maintain herself and who being a student of Class-XII is in dire need of her father's assistance for her education and upbringing.
My attention was however drawn to section 125(1)(c) of the Code, which reads as under :
125. Order for maintenance of wives, children and parents:- (1) If any person having sufficient means neglects or refuses to maintain-
(c)his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself,."
It is also relevant that under the Code, in view of the Explanation (a) to section 125, a minor is a person who has not attained majority under the Indian Majority Act, 1875.
I was extremely disturbed because on a plain reading of the aforesaid provision, it is apparent that a person having sufficient means is only required to maintain his unmarried daughter who has turned major, i.e. after she has crossed the age of eighteen years, only if her inability to maintain herself is due to any physical or mental abnormality or injury, and not otherwise. The position as it stands under this provision is that a college going girl of 18 years, (like the applicant No. 2), who is not yet married, unless she is unable to maintain herself due to any physical or mental abnormality or injury, can be refused maintenance by her father, who is possessed of sufficient means.
At the outset I must complement Shir Shashi Dhar Tripathi, learned Additional Government Advocate who was able to ferret out a two Judge decision of the Apex Court Jagdish Jugtawat Vs. Manju Lata and others, 2002(II) UP Cr.R313, where in similar circumstances the father had prayed that the girl child be allowed maintenance only till she attains majority and not thereafter. The Magistrate had refused his prayer, and the High Court while accepting the legal position that under section 125 of the Code, a minor is entitled maintenance from her parents only till she attains majority, declined to interfere with the order passed by the family court taking a cue from section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the HAM Act) and upheld the order of the family court with a view to avoid multiplicity of proceedings. The relevant portion of the judgement of the High Court was quoted by the Supreme Court in Jagdish Jugtawat (supra), which was as follows:
"Thus in view of the above, though it cannot be said that the order impugned runs counter to the law laid down by the Hon'ble Supreme Court, the provisions of section 125 Cr.P.C. are applicable irrespective of the personal law and it does not make any distinction whether the daughter claiming maintenance is a Hindu or a Muslim. However, taking an overall view of the matter, I, with all respect to the Hon'ble Court, am of the candid view that the provisions require literal interpretation and a daughter would cease to have the benefit of the provisions under section 125 Cr.P.C. on attaining majority, though she would be entitled to claim the benefits further under the statute/personal law. But the Court is not inclined to interfere, as the order does not result in miscarriage of justice, rather interfering with the order would create great inconvenience to Respondent No. 3 as she would be forced to file another petition under sub-section (3) of section 20 of the Act of 1956 for further maintenance etc. Thus, in order to avoid multiplicity of litigation,the order impugned does not warrant interference." (Emphasis added)
The Apex Court also was of the view that no exception could be taken to the judgement/order passed by the learned Single Judge of the High Court in maintaining the order passed by the family court, which was based on a combined reading of section 125 of the Code and section 20(3) of HAM Act as it was of the view that the right of a minor girl for maintenance from her parents after attaining majority till her marriage is recognized in section 20(3) of the HAM Act.
Relying on the said decision of the Apex Court in Jagdish Jugtawat Vs. Manju Lata (Supra) I am staying the operation of the order dated 20.11.2007 passed by the Additional Chief Family Court, Kanpur Nagar insofar as it has limited the grant of maintenance to Km. Akansha only till she reaches the age of majority, i.e. till 21.8.2006.
However, in my view, the High Court and the Apex Court in Jagdish Jugtawat has taken this exceptional position, and sought to read the comparatively salutary provisions in the HAM Act because they have been troubled by the restriction implicit in section 125 (1) (c) of the Code whereby a father possessed of sufficient means can refuse maintenance to daughter who may have just become eighteen and is still unmarried and unable to maintain herself. Therefore I think by reading section 20(3) of the HAM Act into section 125(1)(c) of the Code in the peculiar circumstances of some cases, it cannot be demonstrated that section 125(1)(c) as it presently stands is not arbitrary or unreasonble, and the vires of the latter cannot be salvaged by this method. The rights and remedies provided under the HAM Act are completely distinct from the provisions and procedures for grant of maintenance under the Code of Criminal Procedure 1973, which is a comprehensive and self contained Code. In Nanak Chand v. Chndrakishore Aggarwal, AIR 1970 SC 446 it has been observed in paragraph 5 that: "The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State, AIR 1963 All 355, before the Calcutta High Court in Mahabir Agarwalla v. Gita Roy, 1962 (2) Cri LJ 528 (Cal), and before the Patna High Court in Nalini Ranjan v. Kiran Rani, AIR 1965 Pat 442. The three High Courts have, in our view, correctly come to the conclusion that section 4 (b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in section 488, Criminal Procedure Code."
It would be useful to note that when the Law Commission of India was contemplating the replacement of the existing Code of Criminal Procedure 1898, by the present 1973 Code, it suggested in its 41st report, (September 1969) in Chapter XXXVI paragraph 36.3, that a daughter or son of whatever age unable to maintain himself or herself should be entitled to maintenance under section 488 and had even called for a more extensive right than what was available under the personal laws. It would be useful here to quote paragraph 36.3 of the Report in toto:
"36.3. Section 488(1) speaks of neglecting or refusing to maintain the "wife" or "child". Some controversy exists as to whether the expression "child" means a minor, or whether it includes any son or daughter unable to maintain himself or herself. It has been suggested that a daughter or son of whatever age should be entitled to maintenance under section 488.
No doubt, the right under section 488 will, if this view is adopted, be wider than that enjoyed under personal law. For example, under the Hindu Adoptions and Maintenance Act, 1956 a child can claim maintenance only so long as the child is a minor. This was also the rule of Hindu Law regarding sons. According to Muslim law also, a father is bound to maintain his sons until puberty and daughter until marriage, but not adult sons unless disabled by infirmity or disease. But having regard to the primary object of section 488-namely, prevention of vagrancy- a wider view on the subject is desirable. The emphasis should be on the inability to maintain itself and not on the age of the child.
In fact, the existing wording amply supports a wider interpretation. The position was lucidly explained in the undermentioned Patna case (Khidani v. Legan Singh, A.I.R. 1921 Pat. 379(1) with which we agree. Other cases on the subject are also noted below." (viz. Bhagat Singh v. Emp., (1910) 26 P.R. 1910 Cr.; 6 I.C. 960; 11 Cr.L.J. 427; Krihnaswamy Iyer v. Chandravadana, (1918) I.L. R. 37 Mad. 565; 25 M.L. J. 349; Thambuswamy Pillay v. Ma Louse, (1917) 9 L.B. R., 37 I.C. 311; 10 Bur. L.T. 209)
The Apex Court in Nanak Chand v. Chandra Kishore Aggarwal, A.I.R. 1970 SC 446 has also reiterated the same position that there should be no limitation of age, in the definition of the word "child" and a child of any age should be entititled to maintenance if it is unable to maintain itself and the parent is possessed of sufficient means. It would be useful in this context to extract paragraphs 7, 8, 9 and 11 of Nanak Chand's case:
7. The word 'Child' is not defined in the Code itself. This word has different meanings in different contexts. When it is used in correlation with father or parents, according to Shorter Oxford Dictionary it means:
"As correlative to parent, 1. The offspring, male or female, of human parents."
Beaumont, C. J., in Shaikh Ahmed Shaikh Mahomed v. Bai Fatma, ILR (1943) Bom 38 at p. 40 = (AIR 1943 Bom 48 at pp. 48, 49) observed:
"The word "child" according to its use in the English language has different meanings, according to the context. If used without reference to parentage, it is generally synonymous with the word 'infant' and means a person who has not attained the age of majority.....Where the word 'child' is used with reference to parentage, it means a descendant of the first degree, a son or a daughter and has no reference to age. In certain contexts it may include descendants of more remote degree, and be equivalent to "issue". But, at any rate, where the word "child" is used in conjunction with parentage, it is not concerned with age. No one would suggest that a gift "to all my children" or "to all the children of A" should be confined to minor children. In section 488 of the Criminal Prcedure Code the word is used with reference to the father. There is no qualification of age; the only qualification is that the child must be unable to maintain itself. In my opinion, there is no justificiation for saying that this section is confined to children who are under the age of majority."
8. We agree with these observations and it seems to us that there is no reason to depart from the dictionary meaning of the word.
9.As observed by Subba Rao, J., as he then was, speaking for the Court in Jagir Kaur v Jaswant Singh, (1964) 2 SCR 73 at p. 84 = (AIR 1963 SC 1521 at p. 1525), "Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose". If the concept of majority is imported into the section a major child who is an imbecile or otherwise handicapped will fall outside the purview of this section. If this concept is not imported, no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself. The older a person becomes the more difficult it would be to prove that he is unable to maintain himself. It is true that a son aged 77 may claim maintenance under the section from a father who is 97. It is very unlikely to happen but if it does happen and the father is able to maintain while the son is unable to maintain himself no harm would be done by passing an appropriate order under section 488. We cannot view with equanimity the lot of helpless children who though major are unable to support themselves because of their imbecility or deformity or other handicaps, and it is not as if such cases have not arisen. As long ago as 1873, Pearson, J., in the matter of W. B. Todd, 1873-5 NWPHCR 237 had to deal with a major son who was deaf and dumb, and he had no hesitation in granting an order of maintenance. The same conclusion was arrived at by Chevis, J., in 1910 in Bhagat Singh v. Emperor, (1910) 6 Ind Cas 960 = (11 Cri LJ 427 (Punj)) and he allowed maintenance to a young man of about 20 who was very lame having a deformed foot. We have seen no case in which a man of 77 has claimed maintenance and we think, with respect, that unnecessary emphasis has been laid on the fact that it might be possible for a man of 77 to claim maintenance.
12. In view of the reasons given above we must hold that the word "child" in section 488 does not mean a minor son or daughter and the real limitation is contained in the expression "unable to maintain itself". (Emphasis added)
In paragraph 36.6, the Law Commission in its 41 st Report (supra) has recommended that section 488 may be amended, as under:
"36.6. In the light of the above discussion, sub-section (1) of section 488 may be amended to read as follows:-
" (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or legitimate child of any age unable to maintain itself, whether the child be married or unmarried, a Magistrate of the first class may (rest as in the present sub-section)."
It is unfortunate that in spite of the case law referred to above and this salutary recommendation of the Law Commission of India to extend the right of maintenance from parents with sufficient means to all children who were unable to maintain themselves, the amended provision in the 1973 Code took a retrograde step and restricted the right for maintenance to even less that what was available under the personal laws, by conferring the right to maintenance only on those children who have attained the age of maturity (i.e. eighteen years as per the Indian Majority Act) whose inability to maintain themselves is due to some physical or mental abnormality or injury.
The provision 125 (1) (c) of the Code as it is presently worded, even if it were taken as acceptable, so far as the obligation of a father to maintain an able bodied son, who has crossed 18 years of age is concerned where a rider could possibly be imposed that the said son may not be held entitled for maintenance unless he is able to show that his inability to maintain himself is due to some mental or physical abnormality or injury. But to expect that an unmarried daughter, who is still going to college or staying at home awaiting her marriage, and has no source of independent income to maintain herself can be denied maintenance from her father, who possesses sufficient means only because her inability to maintain herself is not due to any physical or mental abnormality as required in section 125(1)(c) of the Code would be extremely harsh and oppressive and in all likelihood violative of Articles 14 and 21 of the Constitution of India. This provision appears particularly anomalous and discriminatory because in the other clauses of section 125(1), i.e. in clauses (a), (b) and (d), a person with sufficient means is required to maintain his wife, his legitimate or illegitimate minor child whether married or not or his father or mother who are unable to maintain themselves and there is no additional requirement for these categories of persons to demonstrate that their inability to maintain themselves is due to physical or mental abnormality or injury for claiming the benefit of this salutary social legislation. The provision as it stands also seems contrary to the spirit of Articles 15(3) and 39 (e) and (f) of the Constitution of India which veritably enjoin the State to design laws for the welfare of women and children and for ensuring that children and youth are protected from moral and material abandonment.
It is noteworthy that under the Muslim Personal Law also provisions for maintenance has been made for unmarried daughters and even for divorced daughters who are unable to maintain themselves. This position with regard to the claim for maintenance of unmarried or divorced daughters (major or minor) in Muslim Personal law has been described in paragraph 9 of the Apex Court decision in Noor Saba Khatoon Vs. Mohd. Quasim, AIR 1997 SC 3280, by relying on a text book on Muslim law by Tahir Mahamood:
9. "Prof. Tahir Mahamood, in his book "Statute-Law relating to Muslims in India" (1995 Edn.) while dealing with the effect of the provisions of section 125, Cr.P.C. on the 1986 Act and the Muslim Personal Law observes at page 198 :
"These provisions of the Code remain fully applicable to the Muslims, notwithstanding the controversy resulting from the Shah Bano case and the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. There is nothing in that Act in any way affecting the application of these provisions to the children and parents governed by Muslim law . . . . . . . . .
As regards children, the Code adopts the age of minority from the Majority Act, 1875 by saying : "Minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority" - [Explanation to section 125(1), clause (a)]. Ordinarily, thus, every Muslim child below 18 can invoke the Cr.P.C. law to obtain maintenance from its parents if they "neglect or refuse" to maintain it despite "having sufficient means" . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . .
By Muslim Law maintenance (nafaqa) is a birth right of children and an absolute liability of the father. Daughters are entitled to maintenance till they get married if they are bakira (maiden), or till they get remarried if they are thayiba (divorcee/widow). Sons are entitled to it till they attain bulugh if they are normal; and as long as necessary if they are handicapped or indigent. Providing maintenance to daughters is a great religious virtue. The Prophet had said :
"Whoever has daughters and spends all that he has on their upbringing well, on the Day of Judgment, be as close to me as two fingers of a hand."
If a father is poverty-stricken and cannot therefore provide maintenance to his children, while their mother is affluent, the mother must provide them maintenance subject to reimbursement by the father when his financial condition improves." (Emphasis added)
However, the aforesaid passage cited in Noor Saba Khatoon (supra) shows that under Muslim personal Law so far as the male child is concerned, once he has reached puberty and unless he is handicapped or indigent, which prevents him from maintaining himself, he is not held entitled for maintenance.
In the Hindu Personal Law also as I have mentioned above, under section 20(3) of HAM Act an obligation on a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.
The said provision reads as under:
" 20 (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property."
I think that as salutary amendments have been introduced for making Chapter IX of the Code more sensitive and responsive to the special needs and problems of females, retention of section 125(1)(c) in its present form appears to be the result of a oversight by the Legislature. Thus seeing the inadequacy of the limit of maintenance of Rs. 500/-, which was all that was permissible under the 1973 Code, by Act No. 50 of 2001, effective from 24.9.2001, the limit of Rs. 500/- has been done away with, and now there is no ceiling on the amount that can be granted as maintenance to the wife or other eligible person. Of course the sufficiency of the means of the person who is required to provide maintenance will have to be taken into account. Likewise, as the proceedings for maintenance were becoming unduly prolonged due to non-cooperation by the adversary husband, by the same 2001 amendment a provision for interim maintenance of the wife or the child and the expenses of such proceedings, as the Magistrate considers reasonable have also been introduced. Such an application for interim maintenance and expenses for proceedings is required to be disposed of as far as possible within 60 days from the date of notice of the application on the person. Another salutary amendment introduced in the 1973 Act itself was that explanation (b) to section 125 of the Code a "wife" included a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
In this view of the matter, I am of the opinion that the said sub-section 125(1)(c) needs to be amended by the Legislature and the right of to be maintained by a parent having sufficient means should be provided to all unmarried daughters, even after they have attained majority who are unable to maintain themselves. That is the only way to prevent vagrancy and destitution of the girl child, which is one of the prime objectives that these summary provisions for maintenance, which Chapter IX of the Code seeks to address.
I, therefore, direct that notice be issued to the Union of India through the Attorney General of India, and the State of U.P. through the Advocate General to show cause within two months as to how they support the legal validity of section 125 (1) (c) of the Code insofar as the said provision has imposed an additional requirement on an unmarried girl who has attained majority, and is unable to maintain herself that she further demonstrate that her inability to maintain herself is due to some physical or mental abnormality or disease. Copy of this order be also forwarded to the Law Commissions of India and U.P. and also to the National and U.P. State Commissions for Women for appropriate intervention by these bodies. The Registrar General is directed to issue the aforesaid notices to the Attorney General of India and the Advocate General of U.P. and to communicate this order to the Law Commissions of India and U.P. and to the National and U.P. State Commissions for Women within two weeks.
Notice may also be issued to opposite party No. 2, who may file a counter affidavit by the next date fixed. As directed above the operation of the order dated 20.11.2007 passed by the Additional Chief Family Court, Kanpur Nagar insofar as it has limited the grant of maintenance to Km. Akansha only till she reaches the age of majority, i.e. till 21.8.2006. shall be kept in abeyance until further orders.
List this case on 7.4.2008 for further orders.
This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 46
Criminal Misc. Application No. 1760 of 2008
Smt. Raj Kumari Awasthi and another...............................Applicants
Versus
State of U.P. and another...........................................Opposite parties
********
Hon'ble Amar Saran, J.
Heard Shri Saurabh Srivastava, learned counsel for the applicants and Shri Shashi Dhar Tripathi, learned Additional Government Advocate.
The applicants who are the wife and daughter of O.P. No. 2 have preferred this application under section 482 Cr.P.C. challenging the order dated 29.11.2007 whereby the learned Additional Chief Family Court, Kanpur Nagar has modified his order dated 9.5.06 granting maintenance to both the applicants at the rate of Rs. 700 per month in proceedings under section 127 Cr.P.C in Case No. 171 of 2006 and limited the grant of maintenance to his daughter, applicant Akansha till the date she turns major, i.e. till 21.8.06 whilst upholding the grant of maintenance to his wife, applicant Smt. Raj Kumari Awasthi
This part of the order was assailed by the applicants by arguing that under section 127 of the Code, grant of maintenance cannot be denied to an unmarried daughter, who has no source of income whatsoever to maintain herself and who being a student of Class-XII is in dire need of her father's assistance for her education and upbringing.
My attention was however drawn to section 125(1)(c) of the Code, which reads as under :
125. Order for maintenance of wives, children and parents:- (1) If any person having sufficient means neglects or refuses to maintain-
(c)his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself,."
It is also relevant that under the Code, in view of the Explanation (a) to section 125, a minor is a person who has not attained majority under the Indian Majority Act, 1875.
I was extremely disturbed because on a plain reading of the aforesaid provision, it is apparent that a person having sufficient means is only required to maintain his unmarried daughter who has turned major, i.e. after she has crossed the age of eighteen years, only if her inability to maintain herself is due to any physical or mental abnormality or injury, and not otherwise. The position as it stands under this provision is that a college going girl of 18 years, (like the applicant No. 2), who is not yet married, unless she is unable to maintain herself due to any physical or mental abnormality or injury, can be refused maintenance by her father, who is possessed of sufficient means.
At the outset I must complement Shir Shashi Dhar Tripathi, learned Additional Government Advocate who was able to ferret out a two Judge decision of the Apex Court Jagdish Jugtawat Vs. Manju Lata and others, 2002(II) UP Cr.R313, where in similar circumstances the father had prayed that the girl child be allowed maintenance only till she attains majority and not thereafter. The Magistrate had refused his prayer, and the High Court while accepting the legal position that under section 125 of the Code, a minor is entitled maintenance from her parents only till she attains majority, declined to interfere with the order passed by the family court taking a cue from section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the HAM Act) and upheld the order of the family court with a view to avoid multiplicity of proceedings. The relevant portion of the judgement of the High Court was quoted by the Supreme Court in Jagdish Jugtawat (supra), which was as follows:
"Thus in view of the above, though it cannot be said that the order impugned runs counter to the law laid down by the Hon'ble Supreme Court, the provisions of section 125 Cr.P.C. are applicable irrespective of the personal law and it does not make any distinction whether the daughter claiming maintenance is a Hindu or a Muslim. However, taking an overall view of the matter, I, with all respect to the Hon'ble Court, am of the candid view that the provisions require literal interpretation and a daughter would cease to have the benefit of the provisions under section 125 Cr.P.C. on attaining majority, though she would be entitled to claim the benefits further under the statute/personal law. But the Court is not inclined to interfere, as the order does not result in miscarriage of justice, rather interfering with the order would create great inconvenience to Respondent No. 3 as she would be forced to file another petition under sub-section (3) of section 20 of the Act of 1956 for further maintenance etc. Thus, in order to avoid multiplicity of litigation,the order impugned does not warrant interference." (Emphasis added)
The Apex Court also was of the view that no exception could be taken to the judgement/order passed by the learned Single Judge of the High Court in maintaining the order passed by the family court, which was based on a combined reading of section 125 of the Code and section 20(3) of HAM Act as it was of the view that the right of a minor girl for maintenance from her parents after attaining majority till her marriage is recognized in section 20(3) of the HAM Act.
Relying on the said decision of the Apex Court in Jagdish Jugtawat Vs. Manju Lata (Supra) I am staying the operation of the order dated 20.11.2007 passed by the Additional Chief Family Court, Kanpur Nagar insofar as it has limited the grant of maintenance to Km. Akansha only till she reaches the age of majority, i.e. till 21.8.2006.
However, in my view, the High Court and the Apex Court in Jagdish Jugtawat has taken this exceptional position, and sought to read the comparatively salutary provisions in the HAM Act because they have been troubled by the restriction implicit in section 125 (1) (c) of the Code whereby a father possessed of sufficient means can refuse maintenance to daughter who may have just become eighteen and is still unmarried and unable to maintain herself. Therefore I think by reading section 20(3) of the HAM Act into section 125(1)(c) of the Code in the peculiar circumstances of some cases, it cannot be demonstrated that section 125(1)(c) as it presently stands is not arbitrary or unreasonble, and the vires of the latter cannot be salvaged by this method. The rights and remedies provided under the HAM Act are completely distinct from the provisions and procedures for grant of maintenance under the Code of Criminal Procedure 1973, which is a comprehensive and self contained Code. In Nanak Chand v. Chndrakishore Aggarwal, AIR 1970 SC 446 it has been observed in paragraph 5 that: "The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State, AIR 1963 All 355, before the Calcutta High Court in Mahabir Agarwalla v. Gita Roy, 1962 (2) Cri LJ 528 (Cal), and before the Patna High Court in Nalini Ranjan v. Kiran Rani, AIR 1965 Pat 442. The three High Courts have, in our view, correctly come to the conclusion that section 4 (b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in section 488, Criminal Procedure Code."
It would be useful to note that when the Law Commission of India was contemplating the replacement of the existing Code of Criminal Procedure 1898, by the present 1973 Code, it suggested in its 41st report, (September 1969) in Chapter XXXVI paragraph 36.3, that a daughter or son of whatever age unable to maintain himself or herself should be entitled to maintenance under section 488 and had even called for a more extensive right than what was available under the personal laws. It would be useful here to quote paragraph 36.3 of the Report in toto:
"36.3. Section 488(1) speaks of neglecting or refusing to maintain the "wife" or "child". Some controversy exists as to whether the expression "child" means a minor, or whether it includes any son or daughter unable to maintain himself or herself. It has been suggested that a daughter or son of whatever age should be entitled to maintenance under section 488.
No doubt, the right under section 488 will, if this view is adopted, be wider than that enjoyed under personal law. For example, under the Hindu Adoptions and Maintenance Act, 1956 a child can claim maintenance only so long as the child is a minor. This was also the rule of Hindu Law regarding sons. According to Muslim law also, a father is bound to maintain his sons until puberty and daughter until marriage, but not adult sons unless disabled by infirmity or disease. But having regard to the primary object of section 488-namely, prevention of vagrancy- a wider view on the subject is desirable. The emphasis should be on the inability to maintain itself and not on the age of the child.
In fact, the existing wording amply supports a wider interpretation. The position was lucidly explained in the undermentioned Patna case (Khidani v. Legan Singh, A.I.R. 1921 Pat. 379(1) with which we agree. Other cases on the subject are also noted below." (viz. Bhagat Singh v. Emp., (1910) 26 P.R. 1910 Cr.; 6 I.C. 960; 11 Cr.L.J. 427; Krihnaswamy Iyer v. Chandravadana, (1918) I.L. R. 37 Mad. 565; 25 M.L. J. 349; Thambuswamy Pillay v. Ma Louse, (1917) 9 L.B. R., 37 I.C. 311; 10 Bur. L.T. 209)
The Apex Court in Nanak Chand v. Chandra Kishore Aggarwal, A.I.R. 1970 SC 446 has also reiterated the same position that there should be no limitation of age, in the definition of the word "child" and a child of any age should be entititled to maintenance if it is unable to maintain itself and the parent is possessed of sufficient means. It would be useful in this context to extract paragraphs 7, 8, 9 and 11 of Nanak Chand's case:
7. The word 'Child' is not defined in the Code itself. This word has different meanings in different contexts. When it is used in correlation with father or parents, according to Shorter Oxford Dictionary it means:
"As correlative to parent, 1. The offspring, male or female, of human parents."
Beaumont, C. J., in Shaikh Ahmed Shaikh Mahomed v. Bai Fatma, ILR (1943) Bom 38 at p. 40 = (AIR 1943 Bom 48 at pp. 48, 49) observed:
"The word "child" according to its use in the English language has different meanings, according to the context. If used without reference to parentage, it is generally synonymous with the word 'infant' and means a person who has not attained the age of majority.....Where the word 'child' is used with reference to parentage, it means a descendant of the first degree, a son or a daughter and has no reference to age. In certain contexts it may include descendants of more remote degree, and be equivalent to "issue". But, at any rate, where the word "child" is used in conjunction with parentage, it is not concerned with age. No one would suggest that a gift "to all my children" or "to all the children of A" should be confined to minor children. In section 488 of the Criminal Prcedure Code the word is used with reference to the father. There is no qualification of age; the only qualification is that the child must be unable to maintain itself. In my opinion, there is no justificiation for saying that this section is confined to children who are under the age of majority."
8. We agree with these observations and it seems to us that there is no reason to depart from the dictionary meaning of the word.
9.As observed by Subba Rao, J., as he then was, speaking for the Court in Jagir Kaur v Jaswant Singh, (1964) 2 SCR 73 at p. 84 = (AIR 1963 SC 1521 at p. 1525), "Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose". If the concept of majority is imported into the section a major child who is an imbecile or otherwise handicapped will fall outside the purview of this section. If this concept is not imported, no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself. The older a person becomes the more difficult it would be to prove that he is unable to maintain himself. It is true that a son aged 77 may claim maintenance under the section from a father who is 97. It is very unlikely to happen but if it does happen and the father is able to maintain while the son is unable to maintain himself no harm would be done by passing an appropriate order under section 488. We cannot view with equanimity the lot of helpless children who though major are unable to support themselves because of their imbecility or deformity or other handicaps, and it is not as if such cases have not arisen. As long ago as 1873, Pearson, J., in the matter of W. B. Todd, 1873-5 NWPHCR 237 had to deal with a major son who was deaf and dumb, and he had no hesitation in granting an order of maintenance. The same conclusion was arrived at by Chevis, J., in 1910 in Bhagat Singh v. Emperor, (1910) 6 Ind Cas 960 = (11 Cri LJ 427 (Punj)) and he allowed maintenance to a young man of about 20 who was very lame having a deformed foot. We have seen no case in which a man of 77 has claimed maintenance and we think, with respect, that unnecessary emphasis has been laid on the fact that it might be possible for a man of 77 to claim maintenance.
12. In view of the reasons given above we must hold that the word "child" in section 488 does not mean a minor son or daughter and the real limitation is contained in the expression "unable to maintain itself". (Emphasis added)
In paragraph 36.6, the Law Commission in its 41 st Report (supra) has recommended that section 488 may be amended, as under:
"36.6. In the light of the above discussion, sub-section (1) of section 488 may be amended to read as follows:-
" (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or legitimate child of any age unable to maintain itself, whether the child be married or unmarried, a Magistrate of the first class may (rest as in the present sub-section)."
It is unfortunate that in spite of the case law referred to above and this salutary recommendation of the Law Commission of India to extend the right of maintenance from parents with sufficient means to all children who were unable to maintain themselves, the amended provision in the 1973 Code took a retrograde step and restricted the right for maintenance to even less that what was available under the personal laws, by conferring the right to maintenance only on those children who have attained the age of maturity (i.e. eighteen years as per the Indian Majority Act) whose inability to maintain themselves is due to some physical or mental abnormality or injury.
The provision 125 (1) (c) of the Code as it is presently worded, even if it were taken as acceptable, so far as the obligation of a father to maintain an able bodied son, who has crossed 18 years of age is concerned where a rider could possibly be imposed that the said son may not be held entitled for maintenance unless he is able to show that his inability to maintain himself is due to some mental or physical abnormality or injury. But to expect that an unmarried daughter, who is still going to college or staying at home awaiting her marriage, and has no source of independent income to maintain herself can be denied maintenance from her father, who possesses sufficient means only because her inability to maintain herself is not due to any physical or mental abnormality as required in section 125(1)(c) of the Code would be extremely harsh and oppressive and in all likelihood violative of Articles 14 and 21 of the Constitution of India. This provision appears particularly anomalous and discriminatory because in the other clauses of section 125(1), i.e. in clauses (a), (b) and (d), a person with sufficient means is required to maintain his wife, his legitimate or illegitimate minor child whether married or not or his father or mother who are unable to maintain themselves and there is no additional requirement for these categories of persons to demonstrate that their inability to maintain themselves is due to physical or mental abnormality or injury for claiming the benefit of this salutary social legislation. The provision as it stands also seems contrary to the spirit of Articles 15(3) and 39 (e) and (f) of the Constitution of India which veritably enjoin the State to design laws for the welfare of women and children and for ensuring that children and youth are protected from moral and material abandonment.
It is noteworthy that under the Muslim Personal Law also provisions for maintenance has been made for unmarried daughters and even for divorced daughters who are unable to maintain themselves. This position with regard to the claim for maintenance of unmarried or divorced daughters (major or minor) in Muslim Personal law has been described in paragraph 9 of the Apex Court decision in Noor Saba Khatoon Vs. Mohd. Quasim, AIR 1997 SC 3280, by relying on a text book on Muslim law by Tahir Mahamood:
9. "Prof. Tahir Mahamood, in his book "Statute-Law relating to Muslims in India" (1995 Edn.) while dealing with the effect of the provisions of section 125, Cr.P.C. on the 1986 Act and the Muslim Personal Law observes at page 198 :
"These provisions of the Code remain fully applicable to the Muslims, notwithstanding the controversy resulting from the Shah Bano case and the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. There is nothing in that Act in any way affecting the application of these provisions to the children and parents governed by Muslim law . . . . . . . . .
As regards children, the Code adopts the age of minority from the Majority Act, 1875 by saying : "Minor means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority" - [Explanation to section 125(1), clause (a)]. Ordinarily, thus, every Muslim child below 18 can invoke the Cr.P.C. law to obtain maintenance from its parents if they "neglect or refuse" to maintain it despite "having sufficient means" . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . .
By Muslim Law maintenance (nafaqa) is a birth right of children and an absolute liability of the father. Daughters are entitled to maintenance till they get married if they are bakira (maiden), or till they get remarried if they are thayiba (divorcee/widow). Sons are entitled to it till they attain bulugh if they are normal; and as long as necessary if they are handicapped or indigent. Providing maintenance to daughters is a great religious virtue. The Prophet had said :
"Whoever has daughters and spends all that he has on their upbringing well, on the Day of Judgment, be as close to me as two fingers of a hand."
If a father is poverty-stricken and cannot therefore provide maintenance to his children, while their mother is affluent, the mother must provide them maintenance subject to reimbursement by the father when his financial condition improves." (Emphasis added)
However, the aforesaid passage cited in Noor Saba Khatoon (supra) shows that under Muslim personal Law so far as the male child is concerned, once he has reached puberty and unless he is handicapped or indigent, which prevents him from maintaining himself, he is not held entitled for maintenance.
In the Hindu Personal Law also as I have mentioned above, under section 20(3) of HAM Act an obligation on a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.
The said provision reads as under:
" 20 (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property."
I think that as salutary amendments have been introduced for making Chapter IX of the Code more sensitive and responsive to the special needs and problems of females, retention of section 125(1)(c) in its present form appears to be the result of a oversight by the Legislature. Thus seeing the inadequacy of the limit of maintenance of Rs. 500/-, which was all that was permissible under the 1973 Code, by Act No. 50 of 2001, effective from 24.9.2001, the limit of Rs. 500/- has been done away with, and now there is no ceiling on the amount that can be granted as maintenance to the wife or other eligible person. Of course the sufficiency of the means of the person who is required to provide maintenance will have to be taken into account. Likewise, as the proceedings for maintenance were becoming unduly prolonged due to non-cooperation by the adversary husband, by the same 2001 amendment a provision for interim maintenance of the wife or the child and the expenses of such proceedings, as the Magistrate considers reasonable have also been introduced. Such an application for interim maintenance and expenses for proceedings is required to be disposed of as far as possible within 60 days from the date of notice of the application on the person. Another salutary amendment introduced in the 1973 Act itself was that explanation (b) to section 125 of the Code a "wife" included a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
In this view of the matter, I am of the opinion that the said sub-section 125(1)(c) needs to be amended by the Legislature and the right of to be maintained by a parent having sufficient means should be provided to all unmarried daughters, even after they have attained majority who are unable to maintain themselves. That is the only way to prevent vagrancy and destitution of the girl child, which is one of the prime objectives that these summary provisions for maintenance, which Chapter IX of the Code seeks to address.
I, therefore, direct that notice be issued to the Union of India through the Attorney General of India, and the State of U.P. through the Advocate General to show cause within two months as to how they support the legal validity of section 125 (1) (c) of the Code insofar as the said provision has imposed an additional requirement on an unmarried girl who has attained majority, and is unable to maintain herself that she further demonstrate that her inability to maintain herself is due to some physical or mental abnormality or disease. Copy of this order be also forwarded to the Law Commissions of India and U.P. and also to the National and U.P. State Commissions for Women for appropriate intervention by these bodies. The Registrar General is directed to issue the aforesaid notices to the Attorney General of India and the Advocate General of U.P. and to communicate this order to the Law Commissions of India and U.P. and to the National and U.P. State Commissions for Women within two weeks.
Notice may also be issued to opposite party No. 2, who may file a counter affidavit by the next date fixed. As directed above the operation of the order dated 20.11.2007 passed by the Additional Chief Family Court, Kanpur Nagar insofar as it has limited the grant of maintenance to Km. Akansha only till she reaches the age of majority, i.e. till 21.8.2006. shall be kept in abeyance until further orders.
List this case on 7.4.2008 for further orders.
Information Technology Act, 2000
Information Technology Act, 2000
An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.
whereas the General Assembly of the United Nations by resolution A/RES/51/162, dated the 30th January, 1997 has adopted the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law;
and whereas the said resolution recommends inter alia that all States give favourable consideration to the said Model Law when they enact or revise their laws, in view of the need for uniformity of the law applicable to alternatives to paper-cased methods of communication and storage of information;
and whereas it is considered necessary to give effect to the said resolution and to promote efficient delivery of Government services by means of reliable electronic records.
be it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-
CHAPTER I
Preliminary
1. Short title, extent, commencement and application
(1) This Act may be called the Information Technology Act, 2000.
(2) It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention thereunder committed outside India by any person.
(3) It shall come into force on such date as the Central Government may, by notification, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the commencement of that provision.
(4) Nothing in this Act shall apply to,-
(a) a negotiable instrument as defined in section 13 of the Negotiable Instruments Act, 1881;
(b) a power-of-attorney as defined in section 1A of the Powers-of-Attorney Act, 1882;
(c) a trust as defined in section 3 of the Indian Trusts Act, 1882;
(d) a will as defined in clause (h) of section 2 of the Indian Succession Act, 1925 including any other testamentary disposition by whatever name called;
(e) any contract for the sale or conveyance of immovable property or any interest in such property;
(f) any such class of documents or transactions as may be notified by the Central Government in the Official Gazette.
2. Definitions
(1) In this Act, unless the context otherwise requires, -
(a) "access" with its grammatical variations and cognate expressions means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network;
(b) "addressee" means a person who is intended by the originator to receive the electronic record but does not include any intermediary;
(c) "adjudicating officer" means an adjudicating officer appointed under subsection (1) of section 46;
(d) "affixing digital signature" with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of digital signature;
(e) "appropriate Government" means as respects any matter,-
(i) Enumerated in List II of the Seventh Schedule to the Constitution; (ii) relating to any State law enacted under List III of the Seventh Schedule to the Constitution,
the State Government and in any other case, the Central Government; (f) "asymmetric crypto system" means a system of a secure key pair consisting of a private key for creating a digital signature and a public key to verify the digital signature; (g) "Certifying Authority" means a person who has been granted a licence to issue a Digital Signature Certificate under section 24; (h) "certification practice statement" means a statement issued by a Certifying Authority to specify the practices that the Certifying Authority employs in issuing Digital Signature Certificates;
(i) "computer" means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network;
(j) "computer network" means the interconnection of one or more computers through—
(i) the use of satellite, microwave, terrestrial line or other communication media; and
(ii) terminals or a complex consisting of two or more interconnected computers whether or not the interconnection is continuously maintained;
(k) "computer resource" means computer, computer system, computer network, data,computer data base or software;
(l) "computer system" means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions;
(m) "Controller" means the Controller of Certifying Authorities appointed under sub-section (l) of section 17; (n) "Cyber Appellate Tribunal" means the Cyber Regulations Appellate Tribunal established under sub-section (1) of section 48;
(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;
(p) "digital signature" means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3;
(q) "Digital Signature Certificate" means a Digital Signature Certificate issued under sub-section (4) of section 35;
(r) "electronic form" with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device;
(s) "Electronic Gazette" means the Official Gazette published in the electronic form;
(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;
(u) "function", in relation to a computer, includes logic, control arithmetical process, deletion, storage and retrieval and communication or telecommunication from or within a computer;
(v) "information" includes data, text, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche:
(w) "intermediary" with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message;
(x) "key pair", in an asymmetric crypto system, means a private key and its mathematically related public key, which are so related that the public key can verify a digital signature created by the private key;
(y) "law" includes any Act of Parliament or of a State Legislature, Ordinances promulgated by the President or a Governor, as the case may be. Regulations made by the President under article 240, Bills enacted as President's Act under sub-clause (a) of clause (1) of article 357 of the Constitution and includes rules, regulations, bye-laws and orders issued or made thereunder;
(z) "licence" means a licence granted to a Certifying Authority under section 24;
(za) "originator" means a person who sends, generates, stores or transmits any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary;
(zb) "prescribed" means prescribed by rules made under this Act; (zc) "private key" means the key of a key pair used to create a digital signature; (zd) "public key" means the key of a key pair used to verify a digital signature and listed in the Digital Signature Certificate; (ze) "secure system" means computer hardware, software, and procedure that-
(a) are reasonably secure from unauthorised access and misuse;
(b) provide a reasonable level of reliability and correct operation;
(c) are reasonably suited to performing the intended functions; and
(d) adhere to generally accepted security procedures;
(zf) "security procedure" means the security procedure prescribed under section 16 by the Central Government; (zg) "subscriber" means a person in whose name the Digital Signature Certificate is issued; (zh) "verify" in relation to a digital signature, electronic record or public key, with its grammatical variations and cognate expressions means to determine whether-
(a) the initial electronic record was affixed with the digital signature by the use of private key corresponding to the public key of the subscriber;
(b) the initial electronic record is retained intact or has been altered since such electronic record was so affixed with the digital signature.
(2) Any reference in this Act to any enactment or any provision thereof shall, in relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.
CHAPTER II
DIGITAL SIGNATURE
3. Authentication of electronic records.
(1) Subject to the provisions of this section any subscriber may authenticate an electronic record by affixing his digital signature.
(2) The authentication of the electronic record shall be effected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record.
Explanation.- For the purposes of this sub-section, "hash function" means an algorithm mapping or translation of one sequence of bits into another, generally smaller, set known'as "hash result" such that an electronic record yields the same hash result every time the algorithm is executed with the same electronic record as its input making it computationally infeasible-
(a) to derive or reconstruct the original electronic record from the hash result produced by the algorithm;
(b) that two electronic records can produce the same hash result using the algorithm.
(3) Any person by the use of a public key of the subscriber can verify the electronic record.
(4) The private key and the public key are unique to the subscriber and constitute a functioning key pair.
CHAPTER III
ELECTRONIC GOVERNANCE
4. Legal recognition of electronic records.
Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-
(a) rendered or made available in an electronic form; and
(b) accessible so as to be usable for a subsequent reference.
5. Legal recognition of digital signatures.
Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person (hen, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government.
Explanation.- For the purposes of this section, "signed", with its grammatical variations and cognate expressions, shall, with reference to a person, mean affixing of his hand written signature or any mark on any document and the expression "signature" shall be construed accordingly.
6. Use of electronic records and digital signatures in Government and its agencies.
(1) Where any law provides for-
(a) the filing of any form. application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner; (b) the issue or grant of any licence, permit, sanction or approval by whatever name called in a particular manner; (c) the receipt or payment of money in a particular manner,
then, notwithstanding anything contained in any other law for the time being in force, such requirement shall be deemed to have been satisfied if such filing, issue, grant, receipt or payment, as the case may be, is effected by means of such electronic form as may be prescribed by the appropriate Government.
(2) The appropriate Government may, for the purposes of sub-section (1), by rules, prescribe-
(a) the manner and format in which such electronic records shall be filed, created or issued; (b) the manner or method of payment of any fee or charges for filing, creation or issue any electronic record under clause
7. Retention of electronic records.
(1) Where any law provides that documents, records or information shall be retained for any specific period, then, that requirement shall be deemed to have been satisfied if such documents, records or information are retained in the electronic form, if-
(a) the information contained therein remains accessible so as to be usable for a subsequent reference; (b) the electronic record is retained in the format in which it was originally generated, sent or received or in a format which can be demonstrated to represent accurately the information originally generated, sent or received; (c) the details which will facilitate the identification of the origin, destination, date and time of despatch or receipt of such electronic record are available in the electronic record:
Provided that this clause does not apply to any information which is automatically generated solely for the purpose of enabling an electronic record to be despatched or received.
(2) Nothing in this section shall apply to any law that expressly provides for the retention of documents, records or information in the form of electronic records.
8. Publication of rule, regulation, etc., in Electronic Gazette.
Where any law provides that any rule, regulation, order, bye-law, notification or any other matter shall be published in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette:
Provided that where any rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form.
9. Sections 6,7 and 8 not to confer right to insist document should be accepted in electronic form.
Nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form.
10. Power to make rules by Central Government in respect of digital signature.
The Central Government may, for the purposes of this Act, by rules, prescribe—
(a) the type of digital signature;
(b) the manner and format in which the digital signature shall be affixed;
(c) the manner or procedure which facilitates identification of the person affixing the digital signature;
(d) control processes and procedures to ensure adequate integrity, security and confidentiality of electronic records or payments; and
(e) any other matter which is necessary to give legal effect to digital signatures.
CHAPTER IV
ATTRIBUTION, ACKNOWLEDGMENT AND DESPATCH OF ELECTRONIC RECORDS
11.Attribution of electronic records.
An electronic record shall be attributed to the originator—
(a) if it was sent by the originator himself; (b) by a person who had the authority to act on behalf of the originator in respect of that electronic record; or (c) by an information system programmed by or on behalf of the originator to operate automatically.
12. Acknowledgment of receipt.
(1) Where the originator has not agreed with the addressee that the acknowledgment of receipt of electronic record be given in a particular form or by a particular method, an acknowledgment may be given by-
(a) any communication by the addressee, automated or otherwise; or (b) any conduct of the addressee, sufficient to indicate to the originator that the electronic record has been received.
(2) Where the originator has stipulated that the electronic record shall be binding only on receipt of an acknowledgment of such electronic record by him, then unless acknowledgment has been so received, the electronic record shall be deemed to have been never sent by the originator.
(3) Where the originator has not stipulated that the electronic record shall be binding only on receipt of such acknowledgment, and the acknowledgment has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed to within a reasonable time, then the originator may give notice to the addressee stating that no acknowledgment has been received by him and specifying a reasonable time by which the acknowledgment must be received by him and if no acknowledgment is received within the aforesaid time limit he may after giving notice to the addressee, treat the electronic record as though it has never been sent.
13. Time and place of despatch and receipt of electronic record.
(1) Save as otherwise agreed to between the originator and the addressee, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator.
(2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely :-
(a) if the addressee has designated a computer resource for the purpose of receiving electronic records,-
(i) receipt occurs at the time when the electronic, record enters the designated computer resource; or (ii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee;
(b) if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee.
(3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be dispatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.
(4) The provisions of sub-section (2) shall apply notwithstanding that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under sub-section (3).
(5) For the purposes of this section,-
(a)if the originator or the addressee has more than one place of business, the principal place of business, shall be the place of business; (b) if the originator or the addressee does not have a place of business, his usual place of residence shall be deemed to be the place of business; (c) "usual place of residence", in relation to a body corporate, means the place where it is registered.
CHAPTER V
SECURE ELECTRONIC RECORDS AND SECURE DIGITAL SIGNATURES
14. Secure electronic record.
Where any security procedure has been applied to an electronic record at a specific point of time. then such record shall be deemed to be a secure electronic record from such point of time to the time of verification.
15. Secure digital signature.
If, by application of a security procedure agreed to by the parties concerned, it can be verified that a digital signature, at the time it was affixed, was-
(a) unique to the subscriber affixing it;
(b)capable of identifying such subscriber;
(c) created in a manner or using a means under the exclusive control of the subscriber and is linked to the electronic record to which it relates in such a manner that if the electronic record was altered the digital signature would be invalidated,
then such digital signature shall be deemed to be a secure digital signature.
16. Security procedure.
The Central Government shall for the purposes of this Act prescribe the security procedure having regard to commercial circumstances prevailing at the time when the procedure was used, including—
(a) the nature of the transaction; (b) the level of sophistication of the parties with reference to their technological capacity; (c) the volume of similar transactions engaged in by other parties; (d) the availability of alternatives offered to but rejected by any party; (e) the cost of alternative procedures; and (f) the procedures in general use for similar types of transactions or communications.
CHAPTER VI
REGULATION OF CERTIFYING AUTHORITIES
17. Appointment of Controller and other officers.
(1) The Central Government may, by notification in the Official Gazette, appoint a Controller of Certifying Authorities for the purposes of this Act and may also by the same or subsequent notification appoint such number of Deputy Controllers and Assistant Controllers as it deems fit.
(2) The Controller shall discharge his functions under this Act subject to the general control and directions of the Central Government.
(3) The Deputy Controllers and Assistant Controllers shall perform the functions assigned to them by the Controller under the general superintendence and control of the Controller.
(4) The qualifications, experience and terms and conditions of service of Controller, Deputy Controllers and Assistant Controllers shall be such as may be prescribed by the Central Government.
(5) The Head Office and Branch Office of the office of the Controller shall be at such places as the Central Government may specify, and these may be established at such places as the Central Government may think fit.
(6) There shall be a seal of the Office of the Controller.
18. Functions of Controller.
The Controller may perform all or any of the following functions, namely:-
(a) exercising supervision over the activities of the Certifying Authorities;
(b) certifying public keys of the Certifying Authorities;
(c) laying down the standards to be maintained by the Certifying Authorities;
(d) specifying the qualifications and experience which employees of the Certifying Authorities should possess;
(e) specifying the conditions subject to which the Certifying Authorities shall conduct their business;
(f) specifying the contents of written, printed or visual materials and advertisements that may be distributed or used in respect of a Digital Signature Certificate and the public key;
(g) specifying the form and content of a Digital Signature Certificate and the key,
(h) specifying the form and manner in which accounts shall be maintained by the Certifying Authorities;
(i) specifying the terms and conditions subject to which auditors may be appointed and the remuneration to be paid to them;
(j) facilitating the establishment of any electronic system by a Certifying Authority either solely or jointly with other Certifying Authorities and regulation of such systems;
(k) specifying the manner in which the Certifying Authorities shall conduct their dealings with the subscribers;
(l) resolving any conflict of interests between the Certifying Authorities and the subscribers;
(m) laying down the duties of the Certifying Authorities;
(n) maintaining a data base containing the disclosure record of every Certifying Authority containing such particulars as may be specified by regulations, which shall be accessible to public.
19. Recognition of foreign Certifying Authorities.
(1) Subject to such conditions and restrictions as may be specified by regulations, the Controller may with the previous approval of the Central Government, and by notification in the Official Gazette, recognise any foreign Certifying Authority as a Certifying Authority for the purposes of this Act.
(2) Where any Certifying Authority is recognised under sub-section (1), the Digital Signature Certificate issued by such Certifying Authority shall be valid for the purposes of this Act.
(3) The Controller may, if he is satisfied that any Certifying Authority has contravened any of the conditions and restrictions subject to which it was granted recognition under sub-section (1) he may, for reasons to be recorded in writing, by notification in the Official Gazette, revoke such recognition.
20. Controller to act as repository.
(1) The Controller shall be the repository of all Digital Signature Certificates issued under this Act.
(2) The Controller shall-
(a) make use of hardware, software and procedures that are secure from intrusion and misuse;
(b) observe such other standards as may be prescribed by the Central Government, to ensure that the secrecy and security of the digital signatures are assured.
(3) The Controller shall maintain a computerised data base of all public keys in such a manner that such data base and the public keys are available to any member of the public.
21. Licence to issue Digital Signature Certificates.
(1) Subject to the provisions of sub-section (2), any person may make an application, to the Controller, for a licence to issue Digital Signature Certificates.
(2) No licence shall be issued under sub-section (1), unless the applicant fulfills such requirements with respect to qualification, expertise, manpower, financial resources and other infrastructure facilities, which are necessary to issue Digital Signature Certificates as may be prescribed by the Central Government
(3) A licence granted under this section shall—
(a) be valid for such period as may be prescribed by the Central Government;
(b) not be transferable or heritable;
(c) be subject to such terms and conditions as may be specified by the regulations.
22. Application for licence.
(1) Every application for issue of a licence shall be in such form as may be prescribed by the Central Government.
(2) Every application for issue of a licence shall be accompanied by-
(a) a certification practice statement;
(b) a statement including the procedures with respect to identification of the applicant;
(c) payment of such fees, not exceeding twenty-five thousand rupees as may be prescribed by the Central Government;
(d) such other documents, as may be prescribed by the Central Government.
23. Renewal of licence.
An application for renewal of a licence shall be-
(a) in such form;
(b) accompanied by such fees, not exceeding five thousand rupees,
as may be prescribed by the Central Government and shall be made not less than forty-five days before the date of expiry of the period of validity of the licence.
24. Procedure for grant or rejection of licence.
The Controller may, on receipt of an application under sub-section (1) of section 21, after considering the documents accompanying the application and such other factors, as he deems fit, grant the licence or reject the application:
Provided that no application shall be rejected under this section unless the applicant has been given a reasonable opportunity of presenting his case.
25. Suspension of licence.
(1) The Controller may, if he is satisfied after making such inquiry, as he may think fit, that a Certifying Authority has,-
(a) made a statement in, or in relation to, the application for the issue or renewal of the licence, which is incorrect or false in material particulars;
(b) failed to comply with the terms and conditions subject to which the licence was granted;
(c) failed to maintain the standards specified under clause (b) of sub-section (2) of section 20;
(d) contravened any provisions of this Act, rule, regulation or order made thereunder, revoke the licence:
Provided that no licence shall be revoked unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed revocation.
(2) The Controller may, if he has reasonable cause to believe that there is any ground for revoking a licence under sub-section (1), by order suspend such licence pending the completion of any inquiry ordered by him:
Provided that no licence shall be suspended for a period exceeding ten days unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed suspension.
(3) No Certifying Authority whose licence has been suspended shall issue any Digital Signature Certificate during such suspension.
26. Notice of suspension or revocation of licence.
(1) Where the licence of the Certifying Authority is suspended or revoked, the Controller shall publish notice of such suspension or revocation, as the case may be, in the database maintained by him.
(2) Where one or more repositories are specified, the Controller shall publish notices of such suspension or revocation, as the case may be, in all such repositories:
Provided that the data base containing the notice of such suspension or revocation, as the case may be, shall be made available through a web site which shall be accessible round the clock:
Provided further that the Controller may, if he considers necessary, publicise the contents of database in such electronic or other media, as he may consider appropriate.
27. Power to delegate.
The Controller may, in writing, authorise the Deputy Controller, Assistant Controller or any officer to exercise any of the powers of the Controller under this Chapter.
28. Power to investigate contraventions.
(1) The Controller or any officer authorised by him in this behalf shall take up for investigation any contravention of the provisions of this Act, rules or regulations made thereunder.
(2) The Controller or any officer authorised by him in this behalf shall exercise the like powers which are conferred on Income-tax authorities under Chapter XIII of the Income-tax Act, 1961 and shall exercise such powers, subject to such limitations laid down under that Act.
29. Access to computers and data.
(1)Without prejudice to the provisions of sub-section (1) of section 69, the Controller or any person authorised by him shall, if he has reasonable cause to suspect that any contravention of the provisions of this Act, rules or regulations made thereunder has been committed, have access to any computer system, any apparatus, data or any other material connected with such system, for the purpose of searching or causing a search to be made for obtaining any information or data contained in or available to such computer system.
(2) For the purposes of sub-section (1), the Controller or any person authorised by him may, by order, direct any person incharge of, or otherwise concerned with the operation of, the computer system, data apparatus or material, to provide him with such reasonable technical and other assistance as he may consider necessary.
30. Certifying Authority to follow certain procedures.
Every Certifying Authority shall,-
(a) make use of hardware, software and procedures that are secure from intrusion and misuse;
(b) provide a reasonable level of reliability in its services which are reasonably suited to the performance of intended functions;
(c) adhere to security procedures to ensure that the secrecy and privacy of the digital signatures are assured; and
(d) observe such other standards as may be specified by regulations.
31. Certifying Authority to ensure compliance of the Act, etc.
Every Certifying Authority shall ensure that every person employed or otherwise engaged by it complies, in the course of his employment or engagement, with the provisions of this Act, rules, regulations and orders made thereunder.
32. Display of licence.
Every Certifying Authority shall display its licence at a conspicuous place of the premises in which it carries on its business.
33. Surrender of licence.
(1) Every Certifying Authority whose licence is suspended or revoked shall immediately after such suspension or revocation, surrender the licence to the Controller.
(2) Where any Certifying Authority fails to surrender a licence under sub-section (1), the person in whose favour a licence is issued, shall be guilty of an offence and shall be punished with imprisonment which may extend up to six months or a fine which may extend up to ten thousand rupees or with both.
34. Disclosure.
(1) Every Certifying Authority shall disclose in the manner specified by regulations-
(a) its Digital Signature Certificate which contains the public key corresponding to the private key used by that Certifying Authority to digitally sign another Digital Signature Certificate;
(b) any certification practice statement relevant thereto;
(c) notice of the revocation or suspension of its Certifying Authority certificate, if any; and
(d) any other fact that materially and adversely affects either the reliability of a Digital Signature Certificate, which that Authority has issued, or the Authority's ability to perform its services.
(2) Where in the opinion of the Certifying Authority any event has occurred or any situation has arisen which may materially and adversely affect the integrity of its computer system or the conditions subject to which a Digital Signature Certificate was granted, then, the Certifying Authority shall-
(a) use reasonable efforts to notify any person who is likely to be affected by that occurrence; or
(b) act in accordance with the procedure specified in its certification practice statement to deal with such event or situation.
CHAPTER VII
Digital Signature Certificates
35. Certifying Authority to issue Digital Signature Certificate.
(1) Any person may make an application to the Certifying Authority for the issue of a Digital Signature Certificate in such form as may be prescribed by the Central Government
(2) Every such application shall be accompanied by such fee not exceeding twenty-five thousand rupees as may be prescribed by the Central Government, to be paid to the Certifying Authority:
Provided that while prescribing fees under sub-section (2) different fees may be prescribed for different classes of applicants'.
(3) Every such application shall be accompanied by a certification practice statement or where there is no such statement, a statement containing such particulars, as may be specified by regulations.
(4) On receipt of an application under sub-section (1), the Certifying Authority may, after consideration of the certification practice statement or the other statement under sub-section (3) and after making such enquiries as it may deem fit, grant the Digital Signature Certificate or for reasons to be recorded in writing, reject the application:
Provided that no Digital Signature Certificate shall be granted unless the Certifying Authority is satisfied that-
(a) the applicant holds the private key corresponding to the public key to be listed in the Digital Signature Certificate;
(b) the applicant holds a private key, which is capable of creating a digital signature;
(c) the public key to be listed in the certificate can be used to verify a digital signature affixed by the private key held by the applicant:
Provided further that no application shall be rejected unless the applicant has been given a reasonable opportunity of showing cause against the proposed rejection.
36. Representations upon issuance of Digital Signature Certificate.
A Certifying Authority while issuing a Digital Signature Certificate shall certify that--
(a) it has complied with the provisions of this Act and the rules and regulations made thereunder,
(b) it has published the Digital Signature Certificate or otherwise made it available to such person relying on it and the subscriber has accepted it;
(c) the subscriber holds the private key corresponding to the public key, listed in the Digital Signature Certificate;
(d) the subscriber's public key and private key constitute a functioning key pair,
(e) the information contained in the Digital Signature Certificate is accurate; and
(f) it has no knowledge of any material fact, which if it had been included in the Digital Signature Certificate would adversely affect the reliability of the representations made in clauses (a) to (d).
37. Suspension of Digital Signature Certificate.
(1) Subject to the provisions of sub-section (2), the Certifying Authority which has issued a Digital Signature Certificate may suspend such Digital Signature Certificate,-
(a) on receipt of a request to that effect from -
(i) the subscriber listed in toe Digital Signature Certificate; or
(ii) any person duly authorised to act on behalf of that subscriber,
(b) if it is of opinion that the Digital Signature Certificate should be suspended in public interest
(2) A Digital Signature Certificate shall not be suspended for a period exceeding fifteen days unless the subscriber has been given an opportunity of being heard in the matter.
(3) On suspension of a Digital Signature Certificate under this section, the Certifying Authority shall communicate the same to the subscriber.
38. Revocation of Digital Signature Certificate.
(1) A Certifying Authority may revoke a Digital Signature Certificate issued by it-
(a) where the subscriber or any other person authorised by him makes a request to that effect; or
(b) upon the death of the subscriber, or
(c) upon the dissolution of the firm or winding up of the company where the subscriber is a firm or a company.
(2) Subject to the provisions of sub-section (3) and without prejudice to the provisions of sub-section (1), a CertifyingAuthority may revoke a Digital Signature Certificate which has been issued by it at any time, if it is of opinion that-
(a) a material fact represented in the Digital Signature Certificate is false or has been concealed;
(b) a requirement for issuance of the Digital Signature Certificate was not satisfied;
(c) the Certifying Authority's private key or security system was compromised in a manner materially affecting the Digital Signature Certificate's reliability;
(d) the subscriber has been declared insolvent or dead or where a subscriber is a firm or a company, which has been dissolved, wound-up or otherwise ceased to exist
(3) A Digital Signature Certificate shall not be revoked unless the subscriber has been given an opportunity of being heard in the matter.
(4) On revocation of a Digital Signature Certificate under this section, the Certifying Authority shall communicate the same to the subscriber.
39. Notice of suspension or revocation.
(1) Where a Digital Signature Certificate is suspended or revoked under section 37 or section 38, the Certifying Authority shall publish a notice of such suspension or revocation, as the case may be, in the repository specified in the Digital Signature Certificate for publication of such notice.
(2) Where one or more repositories are specified, the Certifying Authority shall publish notices of such suspension or revocation, as the case may he. in all such repositories.
CHAPTER VIII
DUTIES OF SUBSCRIBERS
40. Generating key pair.
Where any Digital Signature Certificate, the public key of which corresponds to the private key of that subscriber which is to be listed in the Digital Signature Certificate has been accepted by a subscriber, then, the subscriber shall generate the key pair by applying the security procedure.
41. Acceptance of Digital Signature Certificate.
(1) A subscriber shall be deemed to have accepted a Digital Signature Certificate if he publishes or authorises the publication of a Digital Signature Certificate-
(a) to one or more persons;
(b) in a repository, or otherwise demonstrates his approval of the Digital Signature Certificate in any manner.
(2) By accepting a Digital Signature Certificate the subscriber certifies to all who reasonably rely on the information contained in the Digital Signature Certificate that-
(a) the subscriber holds the private key corresponding to the public key listed in the Digital Signature Certificate and is entitled to hold the same;
(b) all representations made by the subscriber to the Certifying Authority and all material relevant to the information contained in the Digital Signature Certificate are true;
(c) all information in the Digital Signature Certificate that is within the knowledge of the subscriber is true.
42. Control of private key.
(1) Every subscriber shall exercise reasonable care to retain control of the private key corresponding to the public key listed in his Digital Signature Certificate and take all steps to prevent its disclosure to a person not authorised to affix the digital signature of the subscriber.
(2) If the private key corresponding to the public key listed in the Digital Signature Certificate has been compromised, then, the subscriber shall communicate the same without any delay to the Certifying Authority in such manner as may be specified by .the regulations.
Explanation.- For the removal of doubts, it is hereby declared that the subscriber shall be liable till he has informed the Certifying Authority that the private key has been compromised.
CHAPTER IX
PENALTIES AND ADJUD1CATION
43. Penalty for damage to computer, computer system, etc.
If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network,-
(a) accesses or secures access to such computer, computer system or computer network;
(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
(c) i ntroduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;
(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;
(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,
he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.
Explanation.- For the purposes of this section,-
(i) "computer contaminant" means any set of computer instructions that are designed-
(a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system, or computer network;
(ii) "computer data base" means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network;
(iii) "computer virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, daia or instruction is executed or some other event takes place in that computer resource;
(iv) "damage" means to destroy, alter, delete, add, modify or rearrange any computer resource by any means.
44. Penalty for failure to furnish information return, etc.
If any person who is required under this Act or any rules or regulations made thereunder to—
(a) furnish any document, return or report to the Controller or ?he Certifying Authority fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty thousand rupees for each such failure;
(b) file any return or furnish any information, books or other documents within the time specified therefor in the regulations fails to file return or furnish the same within the time specified therefor in the regulations, he shall be liable to a penalty not exceeding five thousand rupees for every day during which such failure continues;
(c) maintain books of account or records, fails to maintain the same, he shall be liable to a penalty not exceeding ten thousand rupees for every day during which the failure continues.
45. Residuary penalty.
Whoever contravenes any rules or regulations made under this Act, for .the contravention of which no penalty has been separately provided, shall be liable to pay a compensation not exceeding twenty-five thousand rupees to the person affected by such contravention or a penalty not exceeding twenty-five thousand rupees.
46. Power to adjudicate.
(1) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made thereunder the Central Government shall, subject to the provisions of sub-section (3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer'for holding an inquiry in the manner prescribed by the Central Government.
(2) The adjudicating officer shall, after giving the person referred to in sub-section (1) a reasonable opportunity for making representation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section.
(3) No person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and legal or judicial experience as may be prescribed by the Central Government.
(4) Where more than one adjudicating officers are appointed, the Central Government shall specify by order the matters and places with respect to which such officers shall exercise their jurisdiction.
(5) Every adjudicating officer shall have the powers of a civil court which are conferred oh the Cyber Appellate Tribunal under sub-section (2) of section 58, and—
(a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code;
(b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.
47. Factors to be taken into account by the adjudicating officer.
While adjudging the quantum of compensation under this Chapter, the adjudicating officer shall have due regard to the following factors, namely:-
(a) the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;
(b) the amount of loss caused to any person as a result of the default;
(c) the repetitive nature of the default
(continued)
An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.
whereas the General Assembly of the United Nations by resolution A/RES/51/162, dated the 30th January, 1997 has adopted the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law;
and whereas the said resolution recommends inter alia that all States give favourable consideration to the said Model Law when they enact or revise their laws, in view of the need for uniformity of the law applicable to alternatives to paper-cased methods of communication and storage of information;
and whereas it is considered necessary to give effect to the said resolution and to promote efficient delivery of Government services by means of reliable electronic records.
be it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-
CHAPTER I
Preliminary
1. Short title, extent, commencement and application
(1) This Act may be called the Information Technology Act, 2000.
(2) It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention thereunder committed outside India by any person.
(3) It shall come into force on such date as the Central Government may, by notification, appoint and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the commencement of that provision.
(4) Nothing in this Act shall apply to,-
(a) a negotiable instrument as defined in section 13 of the Negotiable Instruments Act, 1881;
(b) a power-of-attorney as defined in section 1A of the Powers-of-Attorney Act, 1882;
(c) a trust as defined in section 3 of the Indian Trusts Act, 1882;
(d) a will as defined in clause (h) of section 2 of the Indian Succession Act, 1925 including any other testamentary disposition by whatever name called;
(e) any contract for the sale or conveyance of immovable property or any interest in such property;
(f) any such class of documents or transactions as may be notified by the Central Government in the Official Gazette.
2. Definitions
(1) In this Act, unless the context otherwise requires, -
(a) "access" with its grammatical variations and cognate expressions means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network;
(b) "addressee" means a person who is intended by the originator to receive the electronic record but does not include any intermediary;
(c) "adjudicating officer" means an adjudicating officer appointed under subsection (1) of section 46;
(d) "affixing digital signature" with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of digital signature;
(e) "appropriate Government" means as respects any matter,-
(i) Enumerated in List II of the Seventh Schedule to the Constitution; (ii) relating to any State law enacted under List III of the Seventh Schedule to the Constitution,
the State Government and in any other case, the Central Government; (f) "asymmetric crypto system" means a system of a secure key pair consisting of a private key for creating a digital signature and a public key to verify the digital signature; (g) "Certifying Authority" means a person who has been granted a licence to issue a Digital Signature Certificate under section 24; (h) "certification practice statement" means a statement issued by a Certifying Authority to specify the practices that the Certifying Authority employs in issuing Digital Signature Certificates;
(i) "computer" means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network;
(j) "computer network" means the interconnection of one or more computers through—
(i) the use of satellite, microwave, terrestrial line or other communication media; and
(ii) terminals or a complex consisting of two or more interconnected computers whether or not the interconnection is continuously maintained;
(k) "computer resource" means computer, computer system, computer network, data,computer data base or software;
(l) "computer system" means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions;
(m) "Controller" means the Controller of Certifying Authorities appointed under sub-section (l) of section 17; (n) "Cyber Appellate Tribunal" means the Cyber Regulations Appellate Tribunal established under sub-section (1) of section 48;
(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;
(p) "digital signature" means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3;
(q) "Digital Signature Certificate" means a Digital Signature Certificate issued under sub-section (4) of section 35;
(r) "electronic form" with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device;
(s) "Electronic Gazette" means the Official Gazette published in the electronic form;
(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;
(u) "function", in relation to a computer, includes logic, control arithmetical process, deletion, storage and retrieval and communication or telecommunication from or within a computer;
(v) "information" includes data, text, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche:
(w) "intermediary" with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message;
(x) "key pair", in an asymmetric crypto system, means a private key and its mathematically related public key, which are so related that the public key can verify a digital signature created by the private key;
(y) "law" includes any Act of Parliament or of a State Legislature, Ordinances promulgated by the President or a Governor, as the case may be. Regulations made by the President under article 240, Bills enacted as President's Act under sub-clause (a) of clause (1) of article 357 of the Constitution and includes rules, regulations, bye-laws and orders issued or made thereunder;
(z) "licence" means a licence granted to a Certifying Authority under section 24;
(za) "originator" means a person who sends, generates, stores or transmits any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person but does not include an intermediary;
(zb) "prescribed" means prescribed by rules made under this Act; (zc) "private key" means the key of a key pair used to create a digital signature; (zd) "public key" means the key of a key pair used to verify a digital signature and listed in the Digital Signature Certificate; (ze) "secure system" means computer hardware, software, and procedure that-
(a) are reasonably secure from unauthorised access and misuse;
(b) provide a reasonable level of reliability and correct operation;
(c) are reasonably suited to performing the intended functions; and
(d) adhere to generally accepted security procedures;
(zf) "security procedure" means the security procedure prescribed under section 16 by the Central Government; (zg) "subscriber" means a person in whose name the Digital Signature Certificate is issued; (zh) "verify" in relation to a digital signature, electronic record or public key, with its grammatical variations and cognate expressions means to determine whether-
(a) the initial electronic record was affixed with the digital signature by the use of private key corresponding to the public key of the subscriber;
(b) the initial electronic record is retained intact or has been altered since such electronic record was so affixed with the digital signature.
(2) Any reference in this Act to any enactment or any provision thereof shall, in relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.
CHAPTER II
DIGITAL SIGNATURE
3. Authentication of electronic records.
(1) Subject to the provisions of this section any subscriber may authenticate an electronic record by affixing his digital signature.
(2) The authentication of the electronic record shall be effected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record.
Explanation.- For the purposes of this sub-section, "hash function" means an algorithm mapping or translation of one sequence of bits into another, generally smaller, set known'as "hash result" such that an electronic record yields the same hash result every time the algorithm is executed with the same electronic record as its input making it computationally infeasible-
(a) to derive or reconstruct the original electronic record from the hash result produced by the algorithm;
(b) that two electronic records can produce the same hash result using the algorithm.
(3) Any person by the use of a public key of the subscriber can verify the electronic record.
(4) The private key and the public key are unique to the subscriber and constitute a functioning key pair.
CHAPTER III
ELECTRONIC GOVERNANCE
4. Legal recognition of electronic records.
Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-
(a) rendered or made available in an electronic form; and
(b) accessible so as to be usable for a subsequent reference.
5. Legal recognition of digital signatures.
Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person (hen, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government.
Explanation.- For the purposes of this section, "signed", with its grammatical variations and cognate expressions, shall, with reference to a person, mean affixing of his hand written signature or any mark on any document and the expression "signature" shall be construed accordingly.
6. Use of electronic records and digital signatures in Government and its agencies.
(1) Where any law provides for-
(a) the filing of any form. application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner; (b) the issue or grant of any licence, permit, sanction or approval by whatever name called in a particular manner; (c) the receipt or payment of money in a particular manner,
then, notwithstanding anything contained in any other law for the time being in force, such requirement shall be deemed to have been satisfied if such filing, issue, grant, receipt or payment, as the case may be, is effected by means of such electronic form as may be prescribed by the appropriate Government.
(2) The appropriate Government may, for the purposes of sub-section (1), by rules, prescribe-
(a) the manner and format in which such electronic records shall be filed, created or issued; (b) the manner or method of payment of any fee or charges for filing, creation or issue any electronic record under clause
7. Retention of electronic records.
(1) Where any law provides that documents, records or information shall be retained for any specific period, then, that requirement shall be deemed to have been satisfied if such documents, records or information are retained in the electronic form, if-
(a) the information contained therein remains accessible so as to be usable for a subsequent reference; (b) the electronic record is retained in the format in which it was originally generated, sent or received or in a format which can be demonstrated to represent accurately the information originally generated, sent or received; (c) the details which will facilitate the identification of the origin, destination, date and time of despatch or receipt of such electronic record are available in the electronic record:
Provided that this clause does not apply to any information which is automatically generated solely for the purpose of enabling an electronic record to be despatched or received.
(2) Nothing in this section shall apply to any law that expressly provides for the retention of documents, records or information in the form of electronic records.
8. Publication of rule, regulation, etc., in Electronic Gazette.
Where any law provides that any rule, regulation, order, bye-law, notification or any other matter shall be published in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette:
Provided that where any rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form.
9. Sections 6,7 and 8 not to confer right to insist document should be accepted in electronic form.
Nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form.
10. Power to make rules by Central Government in respect of digital signature.
The Central Government may, for the purposes of this Act, by rules, prescribe—
(a) the type of digital signature;
(b) the manner and format in which the digital signature shall be affixed;
(c) the manner or procedure which facilitates identification of the person affixing the digital signature;
(d) control processes and procedures to ensure adequate integrity, security and confidentiality of electronic records or payments; and
(e) any other matter which is necessary to give legal effect to digital signatures.
CHAPTER IV
ATTRIBUTION, ACKNOWLEDGMENT AND DESPATCH OF ELECTRONIC RECORDS
11.Attribution of electronic records.
An electronic record shall be attributed to the originator—
(a) if it was sent by the originator himself; (b) by a person who had the authority to act on behalf of the originator in respect of that electronic record; or (c) by an information system programmed by or on behalf of the originator to operate automatically.
12. Acknowledgment of receipt.
(1) Where the originator has not agreed with the addressee that the acknowledgment of receipt of electronic record be given in a particular form or by a particular method, an acknowledgment may be given by-
(a) any communication by the addressee, automated or otherwise; or (b) any conduct of the addressee, sufficient to indicate to the originator that the electronic record has been received.
(2) Where the originator has stipulated that the electronic record shall be binding only on receipt of an acknowledgment of such electronic record by him, then unless acknowledgment has been so received, the electronic record shall be deemed to have been never sent by the originator.
(3) Where the originator has not stipulated that the electronic record shall be binding only on receipt of such acknowledgment, and the acknowledgment has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed to within a reasonable time, then the originator may give notice to the addressee stating that no acknowledgment has been received by him and specifying a reasonable time by which the acknowledgment must be received by him and if no acknowledgment is received within the aforesaid time limit he may after giving notice to the addressee, treat the electronic record as though it has never been sent.
13. Time and place of despatch and receipt of electronic record.
(1) Save as otherwise agreed to between the originator and the addressee, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator.
(2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely :-
(a) if the addressee has designated a computer resource for the purpose of receiving electronic records,-
(i) receipt occurs at the time when the electronic, record enters the designated computer resource; or (ii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee;
(b) if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee.
(3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be dispatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.
(4) The provisions of sub-section (2) shall apply notwithstanding that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under sub-section (3).
(5) For the purposes of this section,-
(a)if the originator or the addressee has more than one place of business, the principal place of business, shall be the place of business; (b) if the originator or the addressee does not have a place of business, his usual place of residence shall be deemed to be the place of business; (c) "usual place of residence", in relation to a body corporate, means the place where it is registered.
CHAPTER V
SECURE ELECTRONIC RECORDS AND SECURE DIGITAL SIGNATURES
14. Secure electronic record.
Where any security procedure has been applied to an electronic record at a specific point of time. then such record shall be deemed to be a secure electronic record from such point of time to the time of verification.
15. Secure digital signature.
If, by application of a security procedure agreed to by the parties concerned, it can be verified that a digital signature, at the time it was affixed, was-
(a) unique to the subscriber affixing it;
(b)capable of identifying such subscriber;
(c) created in a manner or using a means under the exclusive control of the subscriber and is linked to the electronic record to which it relates in such a manner that if the electronic record was altered the digital signature would be invalidated,
then such digital signature shall be deemed to be a secure digital signature.
16. Security procedure.
The Central Government shall for the purposes of this Act prescribe the security procedure having regard to commercial circumstances prevailing at the time when the procedure was used, including—
(a) the nature of the transaction; (b) the level of sophistication of the parties with reference to their technological capacity; (c) the volume of similar transactions engaged in by other parties; (d) the availability of alternatives offered to but rejected by any party; (e) the cost of alternative procedures; and (f) the procedures in general use for similar types of transactions or communications.
CHAPTER VI
REGULATION OF CERTIFYING AUTHORITIES
17. Appointment of Controller and other officers.
(1) The Central Government may, by notification in the Official Gazette, appoint a Controller of Certifying Authorities for the purposes of this Act and may also by the same or subsequent notification appoint such number of Deputy Controllers and Assistant Controllers as it deems fit.
(2) The Controller shall discharge his functions under this Act subject to the general control and directions of the Central Government.
(3) The Deputy Controllers and Assistant Controllers shall perform the functions assigned to them by the Controller under the general superintendence and control of the Controller.
(4) The qualifications, experience and terms and conditions of service of Controller, Deputy Controllers and Assistant Controllers shall be such as may be prescribed by the Central Government.
(5) The Head Office and Branch Office of the office of the Controller shall be at such places as the Central Government may specify, and these may be established at such places as the Central Government may think fit.
(6) There shall be a seal of the Office of the Controller.
18. Functions of Controller.
The Controller may perform all or any of the following functions, namely:-
(a) exercising supervision over the activities of the Certifying Authorities;
(b) certifying public keys of the Certifying Authorities;
(c) laying down the standards to be maintained by the Certifying Authorities;
(d) specifying the qualifications and experience which employees of the Certifying Authorities should possess;
(e) specifying the conditions subject to which the Certifying Authorities shall conduct their business;
(f) specifying the contents of written, printed or visual materials and advertisements that may be distributed or used in respect of a Digital Signature Certificate and the public key;
(g) specifying the form and content of a Digital Signature Certificate and the key,
(h) specifying the form and manner in which accounts shall be maintained by the Certifying Authorities;
(i) specifying the terms and conditions subject to which auditors may be appointed and the remuneration to be paid to them;
(j) facilitating the establishment of any electronic system by a Certifying Authority either solely or jointly with other Certifying Authorities and regulation of such systems;
(k) specifying the manner in which the Certifying Authorities shall conduct their dealings with the subscribers;
(l) resolving any conflict of interests between the Certifying Authorities and the subscribers;
(m) laying down the duties of the Certifying Authorities;
(n) maintaining a data base containing the disclosure record of every Certifying Authority containing such particulars as may be specified by regulations, which shall be accessible to public.
19. Recognition of foreign Certifying Authorities.
(1) Subject to such conditions and restrictions as may be specified by regulations, the Controller may with the previous approval of the Central Government, and by notification in the Official Gazette, recognise any foreign Certifying Authority as a Certifying Authority for the purposes of this Act.
(2) Where any Certifying Authority is recognised under sub-section (1), the Digital Signature Certificate issued by such Certifying Authority shall be valid for the purposes of this Act.
(3) The Controller may, if he is satisfied that any Certifying Authority has contravened any of the conditions and restrictions subject to which it was granted recognition under sub-section (1) he may, for reasons to be recorded in writing, by notification in the Official Gazette, revoke such recognition.
20. Controller to act as repository.
(1) The Controller shall be the repository of all Digital Signature Certificates issued under this Act.
(2) The Controller shall-
(a) make use of hardware, software and procedures that are secure from intrusion and misuse;
(b) observe such other standards as may be prescribed by the Central Government, to ensure that the secrecy and security of the digital signatures are assured.
(3) The Controller shall maintain a computerised data base of all public keys in such a manner that such data base and the public keys are available to any member of the public.
21. Licence to issue Digital Signature Certificates.
(1) Subject to the provisions of sub-section (2), any person may make an application, to the Controller, for a licence to issue Digital Signature Certificates.
(2) No licence shall be issued under sub-section (1), unless the applicant fulfills such requirements with respect to qualification, expertise, manpower, financial resources and other infrastructure facilities, which are necessary to issue Digital Signature Certificates as may be prescribed by the Central Government
(3) A licence granted under this section shall—
(a) be valid for such period as may be prescribed by the Central Government;
(b) not be transferable or heritable;
(c) be subject to such terms and conditions as may be specified by the regulations.
22. Application for licence.
(1) Every application for issue of a licence shall be in such form as may be prescribed by the Central Government.
(2) Every application for issue of a licence shall be accompanied by-
(a) a certification practice statement;
(b) a statement including the procedures with respect to identification of the applicant;
(c) payment of such fees, not exceeding twenty-five thousand rupees as may be prescribed by the Central Government;
(d) such other documents, as may be prescribed by the Central Government.
23. Renewal of licence.
An application for renewal of a licence shall be-
(a) in such form;
(b) accompanied by such fees, not exceeding five thousand rupees,
as may be prescribed by the Central Government and shall be made not less than forty-five days before the date of expiry of the period of validity of the licence.
24. Procedure for grant or rejection of licence.
The Controller may, on receipt of an application under sub-section (1) of section 21, after considering the documents accompanying the application and such other factors, as he deems fit, grant the licence or reject the application:
Provided that no application shall be rejected under this section unless the applicant has been given a reasonable opportunity of presenting his case.
25. Suspension of licence.
(1) The Controller may, if he is satisfied after making such inquiry, as he may think fit, that a Certifying Authority has,-
(a) made a statement in, or in relation to, the application for the issue or renewal of the licence, which is incorrect or false in material particulars;
(b) failed to comply with the terms and conditions subject to which the licence was granted;
(c) failed to maintain the standards specified under clause (b) of sub-section (2) of section 20;
(d) contravened any provisions of this Act, rule, regulation or order made thereunder, revoke the licence:
Provided that no licence shall be revoked unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed revocation.
(2) The Controller may, if he has reasonable cause to believe that there is any ground for revoking a licence under sub-section (1), by order suspend such licence pending the completion of any inquiry ordered by him:
Provided that no licence shall be suspended for a period exceeding ten days unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed suspension.
(3) No Certifying Authority whose licence has been suspended shall issue any Digital Signature Certificate during such suspension.
26. Notice of suspension or revocation of licence.
(1) Where the licence of the Certifying Authority is suspended or revoked, the Controller shall publish notice of such suspension or revocation, as the case may be, in the database maintained by him.
(2) Where one or more repositories are specified, the Controller shall publish notices of such suspension or revocation, as the case may be, in all such repositories:
Provided that the data base containing the notice of such suspension or revocation, as the case may be, shall be made available through a web site which shall be accessible round the clock:
Provided further that the Controller may, if he considers necessary, publicise the contents of database in such electronic or other media, as he may consider appropriate.
27. Power to delegate.
The Controller may, in writing, authorise the Deputy Controller, Assistant Controller or any officer to exercise any of the powers of the Controller under this Chapter.
28. Power to investigate contraventions.
(1) The Controller or any officer authorised by him in this behalf shall take up for investigation any contravention of the provisions of this Act, rules or regulations made thereunder.
(2) The Controller or any officer authorised by him in this behalf shall exercise the like powers which are conferred on Income-tax authorities under Chapter XIII of the Income-tax Act, 1961 and shall exercise such powers, subject to such limitations laid down under that Act.
29. Access to computers and data.
(1)Without prejudice to the provisions of sub-section (1) of section 69, the Controller or any person authorised by him shall, if he has reasonable cause to suspect that any contravention of the provisions of this Act, rules or regulations made thereunder has been committed, have access to any computer system, any apparatus, data or any other material connected with such system, for the purpose of searching or causing a search to be made for obtaining any information or data contained in or available to such computer system.
(2) For the purposes of sub-section (1), the Controller or any person authorised by him may, by order, direct any person incharge of, or otherwise concerned with the operation of, the computer system, data apparatus or material, to provide him with such reasonable technical and other assistance as he may consider necessary.
30. Certifying Authority to follow certain procedures.
Every Certifying Authority shall,-
(a) make use of hardware, software and procedures that are secure from intrusion and misuse;
(b) provide a reasonable level of reliability in its services which are reasonably suited to the performance of intended functions;
(c) adhere to security procedures to ensure that the secrecy and privacy of the digital signatures are assured; and
(d) observe such other standards as may be specified by regulations.
31. Certifying Authority to ensure compliance of the Act, etc.
Every Certifying Authority shall ensure that every person employed or otherwise engaged by it complies, in the course of his employment or engagement, with the provisions of this Act, rules, regulations and orders made thereunder.
32. Display of licence.
Every Certifying Authority shall display its licence at a conspicuous place of the premises in which it carries on its business.
33. Surrender of licence.
(1) Every Certifying Authority whose licence is suspended or revoked shall immediately after such suspension or revocation, surrender the licence to the Controller.
(2) Where any Certifying Authority fails to surrender a licence under sub-section (1), the person in whose favour a licence is issued, shall be guilty of an offence and shall be punished with imprisonment which may extend up to six months or a fine which may extend up to ten thousand rupees or with both.
34. Disclosure.
(1) Every Certifying Authority shall disclose in the manner specified by regulations-
(a) its Digital Signature Certificate which contains the public key corresponding to the private key used by that Certifying Authority to digitally sign another Digital Signature Certificate;
(b) any certification practice statement relevant thereto;
(c) notice of the revocation or suspension of its Certifying Authority certificate, if any; and
(d) any other fact that materially and adversely affects either the reliability of a Digital Signature Certificate, which that Authority has issued, or the Authority's ability to perform its services.
(2) Where in the opinion of the Certifying Authority any event has occurred or any situation has arisen which may materially and adversely affect the integrity of its computer system or the conditions subject to which a Digital Signature Certificate was granted, then, the Certifying Authority shall-
(a) use reasonable efforts to notify any person who is likely to be affected by that occurrence; or
(b) act in accordance with the procedure specified in its certification practice statement to deal with such event or situation.
CHAPTER VII
Digital Signature Certificates
35. Certifying Authority to issue Digital Signature Certificate.
(1) Any person may make an application to the Certifying Authority for the issue of a Digital Signature Certificate in such form as may be prescribed by the Central Government
(2) Every such application shall be accompanied by such fee not exceeding twenty-five thousand rupees as may be prescribed by the Central Government, to be paid to the Certifying Authority:
Provided that while prescribing fees under sub-section (2) different fees may be prescribed for different classes of applicants'.
(3) Every such application shall be accompanied by a certification practice statement or where there is no such statement, a statement containing such particulars, as may be specified by regulations.
(4) On receipt of an application under sub-section (1), the Certifying Authority may, after consideration of the certification practice statement or the other statement under sub-section (3) and after making such enquiries as it may deem fit, grant the Digital Signature Certificate or for reasons to be recorded in writing, reject the application:
Provided that no Digital Signature Certificate shall be granted unless the Certifying Authority is satisfied that-
(a) the applicant holds the private key corresponding to the public key to be listed in the Digital Signature Certificate;
(b) the applicant holds a private key, which is capable of creating a digital signature;
(c) the public key to be listed in the certificate can be used to verify a digital signature affixed by the private key held by the applicant:
Provided further that no application shall be rejected unless the applicant has been given a reasonable opportunity of showing cause against the proposed rejection.
36. Representations upon issuance of Digital Signature Certificate.
A Certifying Authority while issuing a Digital Signature Certificate shall certify that--
(a) it has complied with the provisions of this Act and the rules and regulations made thereunder,
(b) it has published the Digital Signature Certificate or otherwise made it available to such person relying on it and the subscriber has accepted it;
(c) the subscriber holds the private key corresponding to the public key, listed in the Digital Signature Certificate;
(d) the subscriber's public key and private key constitute a functioning key pair,
(e) the information contained in the Digital Signature Certificate is accurate; and
(f) it has no knowledge of any material fact, which if it had been included in the Digital Signature Certificate would adversely affect the reliability of the representations made in clauses (a) to (d).
37. Suspension of Digital Signature Certificate.
(1) Subject to the provisions of sub-section (2), the Certifying Authority which has issued a Digital Signature Certificate may suspend such Digital Signature Certificate,-
(a) on receipt of a request to that effect from -
(i) the subscriber listed in toe Digital Signature Certificate; or
(ii) any person duly authorised to act on behalf of that subscriber,
(b) if it is of opinion that the Digital Signature Certificate should be suspended in public interest
(2) A Digital Signature Certificate shall not be suspended for a period exceeding fifteen days unless the subscriber has been given an opportunity of being heard in the matter.
(3) On suspension of a Digital Signature Certificate under this section, the Certifying Authority shall communicate the same to the subscriber.
38. Revocation of Digital Signature Certificate.
(1) A Certifying Authority may revoke a Digital Signature Certificate issued by it-
(a) where the subscriber or any other person authorised by him makes a request to that effect; or
(b) upon the death of the subscriber, or
(c) upon the dissolution of the firm or winding up of the company where the subscriber is a firm or a company.
(2) Subject to the provisions of sub-section (3) and without prejudice to the provisions of sub-section (1), a CertifyingAuthority may revoke a Digital Signature Certificate which has been issued by it at any time, if it is of opinion that-
(a) a material fact represented in the Digital Signature Certificate is false or has been concealed;
(b) a requirement for issuance of the Digital Signature Certificate was not satisfied;
(c) the Certifying Authority's private key or security system was compromised in a manner materially affecting the Digital Signature Certificate's reliability;
(d) the subscriber has been declared insolvent or dead or where a subscriber is a firm or a company, which has been dissolved, wound-up or otherwise ceased to exist
(3) A Digital Signature Certificate shall not be revoked unless the subscriber has been given an opportunity of being heard in the matter.
(4) On revocation of a Digital Signature Certificate under this section, the Certifying Authority shall communicate the same to the subscriber.
39. Notice of suspension or revocation.
(1) Where a Digital Signature Certificate is suspended or revoked under section 37 or section 38, the Certifying Authority shall publish a notice of such suspension or revocation, as the case may be, in the repository specified in the Digital Signature Certificate for publication of such notice.
(2) Where one or more repositories are specified, the Certifying Authority shall publish notices of such suspension or revocation, as the case may he. in all such repositories.
CHAPTER VIII
DUTIES OF SUBSCRIBERS
40. Generating key pair.
Where any Digital Signature Certificate, the public key of which corresponds to the private key of that subscriber which is to be listed in the Digital Signature Certificate has been accepted by a subscriber, then, the subscriber shall generate the key pair by applying the security procedure.
41. Acceptance of Digital Signature Certificate.
(1) A subscriber shall be deemed to have accepted a Digital Signature Certificate if he publishes or authorises the publication of a Digital Signature Certificate-
(a) to one or more persons;
(b) in a repository, or otherwise demonstrates his approval of the Digital Signature Certificate in any manner.
(2) By accepting a Digital Signature Certificate the subscriber certifies to all who reasonably rely on the information contained in the Digital Signature Certificate that-
(a) the subscriber holds the private key corresponding to the public key listed in the Digital Signature Certificate and is entitled to hold the same;
(b) all representations made by the subscriber to the Certifying Authority and all material relevant to the information contained in the Digital Signature Certificate are true;
(c) all information in the Digital Signature Certificate that is within the knowledge of the subscriber is true.
42. Control of private key.
(1) Every subscriber shall exercise reasonable care to retain control of the private key corresponding to the public key listed in his Digital Signature Certificate and take all steps to prevent its disclosure to a person not authorised to affix the digital signature of the subscriber.
(2) If the private key corresponding to the public key listed in the Digital Signature Certificate has been compromised, then, the subscriber shall communicate the same without any delay to the Certifying Authority in such manner as may be specified by .the regulations.
Explanation.- For the removal of doubts, it is hereby declared that the subscriber shall be liable till he has informed the Certifying Authority that the private key has been compromised.
CHAPTER IX
PENALTIES AND ADJUD1CATION
43. Penalty for damage to computer, computer system, etc.
If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network,-
(a) accesses or secures access to such computer, computer system or computer network;
(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
(c) i ntroduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;
(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;
(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,
he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.
Explanation.- For the purposes of this section,-
(i) "computer contaminant" means any set of computer instructions that are designed-
(a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system, or computer network;
(ii) "computer data base" means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network;
(iii) "computer virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, daia or instruction is executed or some other event takes place in that computer resource;
(iv) "damage" means to destroy, alter, delete, add, modify or rearrange any computer resource by any means.
44. Penalty for failure to furnish information return, etc.
If any person who is required under this Act or any rules or regulations made thereunder to—
(a) furnish any document, return or report to the Controller or ?he Certifying Authority fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty thousand rupees for each such failure;
(b) file any return or furnish any information, books or other documents within the time specified therefor in the regulations fails to file return or furnish the same within the time specified therefor in the regulations, he shall be liable to a penalty not exceeding five thousand rupees for every day during which such failure continues;
(c) maintain books of account or records, fails to maintain the same, he shall be liable to a penalty not exceeding ten thousand rupees for every day during which the failure continues.
45. Residuary penalty.
Whoever contravenes any rules or regulations made under this Act, for .the contravention of which no penalty has been separately provided, shall be liable to pay a compensation not exceeding twenty-five thousand rupees to the person affected by such contravention or a penalty not exceeding twenty-five thousand rupees.
46. Power to adjudicate.
(1) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made thereunder the Central Government shall, subject to the provisions of sub-section (3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer'for holding an inquiry in the manner prescribed by the Central Government.
(2) The adjudicating officer shall, after giving the person referred to in sub-section (1) a reasonable opportunity for making representation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section.
(3) No person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and legal or judicial experience as may be prescribed by the Central Government.
(4) Where more than one adjudicating officers are appointed, the Central Government shall specify by order the matters and places with respect to which such officers shall exercise their jurisdiction.
(5) Every adjudicating officer shall have the powers of a civil court which are conferred oh the Cyber Appellate Tribunal under sub-section (2) of section 58, and—
(a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code;
(b) shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.
47. Factors to be taken into account by the adjudicating officer.
While adjudging the quantum of compensation under this Chapter, the adjudicating officer shall have due regard to the following factors, namely:-
(a) the amount of gain of unfair advantage, wherever quantifiable, made as a result of the default;
(b) the amount of loss caused to any person as a result of the default;
(c) the repetitive nature of the default
(continued)
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