Law and Justice

Archive for April, 2010

Choosing a Law School can be a difficult decision.  Besides the obvious things such as ranking, expense, location and reputation many potential law students are interested to know what famous attorneys came from the schools they are thinking of attending.  Yet, unless someone does independent research on numerous institutions or wants to research the backgrounds of a particular attorney they are a fan of there is no real good resource that provides such information.  To remedy this, I thought I’d pick out a handful of my favorite attorneys and list where they got their Juris Doctors from.

My personal favorite attorney has to be former California Prosecutor Vincent Bugliosi of ‘The Manson Murders’ fame.  Mr. Bugliosi was able to convict Charles Manson despite the fact that Manson never was actually at the crime scene and committed his crime by brainwashing and planning the Tate/La Bianca murders from afar.  He has since gone on to be an internationally acclaimed writer beginning with the legendary ‘Helter Skelter’ and including the more recent ‘Outrage’ and ‘The prosecution of George W. Bush For Murder’.  Vincent Bugliosi attended UCLA Law School and graduated in 1964.

Next up is the famous ‘country’ lawyer and tv commentator, Gerry Spence.  Mr. Spence is well known as a commentator during the OJ Simpson trials and has the distinction of having never lost a case in 40 years.  He attended the University of Wyoming Law School gaining his degree in 1952.  He is known for pioneering the ‘Matlock’ style of ‘narrative’ lawyering.  He uses stories, allegories, metaphors and carefully crafted emotional hooks to convince a jury of his convictions.

No list would be complete without Professor Alan Dershowitz of Harvard Law School.  Besides his role in the OJ trial, Mr. Dershowitz has obtained a reputation as a great civil liberties lawyer.  He graduated first in his class at Yale Law School and was Editor-in-chief of the Yale Law Journal.  He has one of the most prestigious client lists of any attorney including such notables as Michael Milken, Leona Helmsley, Mike Tyson, Penthouse, Patricia Hearst, John Landis and even fellow attorneys F. Lee Bailey(Boston University Law School 1960) and William Kunstler(Columbia Law School).

Speaking of the OJ Simpson trial, Johnnie Cochran attended Loyola University School of Law in Los Angeles as did the fiery tv and radio commentator Gloria Allred.  Barry Scheck of the ‘Innocence Project’ at Cardozo Law School got his degree at UC Berkeley School of Law.  Robert Shapiro, OJ’s lawyer through much of the early stages of the trial attended UCLA Law School.  On the other side of the court, Marcia Clark attended Southwestern University School of Law and Christopher Darden attended the University of California, Hastings College of The Law.  Finally on the other side of the bench, judge Lance Ito obtained his law degree from UC Berkeley (1975).

Finally, I thought I’d throw in some of my own personal favorites mostly based on their accomplishments and personality.  I’m a big fan of the radio host Larry Elder and Larry got his JD from the University of Michigan School of Law in 1977.  His sometime rival on KABC radio is civil rights attorney Leo Terrel who attended UCLA School of Law.  Since Larry’s been off the air I’ve become a fan of Mark Levin who got his JD from Temple University.  Mark has achieved tremendous success over the past two years and most recently authored his best selling book ‘Liberty and Tyranny’. 

While there are many great law schools, sometimes a look at their most prominent alumni can give an idea of the style of law and particular strengths and character of the school.  For more great articles and insight on Law School please visit www.TopTenLawSchools.com.

 

I have learned from my mentor, how to mainly sponsor wealthy people into my business. It’s true, only true marketing-savvy survives. Combined with “personal branding”, of course. Yes, lower middle-class folks could “find” the money, but often times, mindset-issues like “unhealthy skepticism” prevents them from joining. They assume because they are flat-broke, so is everyone else. For that reason, they’re not joining.

So why do I try to market to white collar folks? Well, my opportunity needs 3K to get involved in and if you want to have a really good shot at actually making it into the top 10-20 percent that don’t fail, another 1-2 thousand dollars would be ideal.

It can be done without marketing-funds, but it is more difficult and will take more time.

But how is it done? The amazing thing is that doing it right isn’t even a tad more difficult than doing it wrong. I learned this from a guy who makes 60K a month, and even he never claimed to have come up with this himself. We can learn from Disney. Harley Davidson. All the big corporations, really.

Here are two techniques:

#1 – Everything you write and especially your ad copy is “magnetic”. If your headline states, “Who else wants to rake in 10K a week without calling people, 100 percent automated system available – Guaranteed!”, who will soon be crawling all over you? That’s right: a bunch of lottery-mentality Lamborghini-loving daydreamers-, who will give it their all….

Until they run into a tiny obstacle. Then they fold and you will never hear from them again.

#2 – How does that compare to the piece you are reading right now? It started with the headline, using terminology like “White Collar Workers” and “High Tier”, which does exactly what a magnet does. It intimidates some (repels) and attracts others. It will make the target market curious, who can afford the opportunity. The folks that are proud of who they are in life and their success. There is no beating around the bush: Note how in the third paragraph I am disclosing the nitty-gritty, that many marketers are afraid to talk about (the fact that we need money for marketing and how much: 1 – 2 thousand dollars). At that point, this article had already lost 70 percent of its readership.

So we can make a choice. We can pick up the gold – and by that I don’t mean “white collar people”. I mean marketing techniques that are so simple, we might as well use them. We are really just focusing on the target market, rather than trying to market to Mr. Everybody and then telling him to get a loan.

To wrap this up, most ideas that are being taught out there are being taught by the 98% of people who fail. It takes “guts” to do what really works and maybe wisdom. Use these methods to make it into the to 2 percent in America.

 

 

 

 

 

 

 

 

 

LAW COMMISSION OF INDIA (REPORT NO. 217)

 

 

 Irretrievable Breakdown of Marriage – Another Ground for Divorce

 

 

 

 

 

 

 

 

 

 

Forwarded  to   the  Union   Minister   for   Law   and Justice, Ministry of Law and Justice, Government of India  by  Dr.  Justice  AR.  Lakshmanan,  Chairman, Law Commission of India, on  the   30th           day  of March, 2009.

 

 

 

The  18th    Law   Commission  was  constituted  for  a period of three years from  1st   September, 2006 by Order  No.  A.45012/1/2006-Admn.III  (LA)  dated  the

16th     October,  2006,  issued  by the  Government of India, Ministry of Law and Justice, Department of Legal Affairs, New Delhi.

 

 

 

 

The Law Commission consists of the Chairman, the Member-Secretary, one full-time Member and seven part-time Members.

 

 

 

 

Chairman

 

 

Hon’ble Dr. Justice AR. Lakshmanan

 

 

Member-Secretary

 

 

Dr. Brahm A. Agrawal

 

 

Full-time Member

 

 

Prof. Dr. Tahir Mahmood

 

 

Part-time Members

 

 

Dr. (Mrs.) Devinder Kumari Raheja Dr. K. N. Chandrasekharan  Pillai Prof. (Mrs.) Lakshmi Jambholkar Smt. Kirti Singh

Shri Justice I. Venkatanarayana

Shri O.P. Sharma

Dr. (Mrs.) Shyamlha Pappu

 

 

 

The Law Commission is located in ILI Building,

2nd  Floor, Bhagwan Das Road, New Delhi-110 001

 

 

 

Law Commission Staff

 

 

 

 

Member-Secretary

 

 

Dr. Brahm A. Agrawal

 

 

 

 

Research Staff

 

 

Shri Sushil Kumar         :    Joint    Secretary&    Law

Officer

Ms. Pawan Sharma               : Additional Law Officer

Shri J. T. Sulaxan Rao       : Additional Law Officer

Shri A. K. Upadhyay              : Deputy Law Officer

Dr. V. K. Singh                       :Assistant             Legal

Adviser

Dr. R. S. Shrinet                : Superintendent (Legal)

 

 

 

 

Administrative Staff

 

 

Shri Sushil Kumar         :    Joint    Secretary&    Law

Officer

Shri D. Choudhury        : Under Secretary Shri S. K. Basu                                        : Section Officer Smt. Rajni Sharma                                       : Assistant Library &

Information Officer

 

 

 

 

 

 

 

 

 

 

 

at:

 

The text of this Report is available on the Internet

 

 

http://www.lawcommissionofindia.nic.in

 

 

 

 

 

 

©      Government of India

Law Commission of India

 

 

 

 

 

 

 

 

 

 

 

 

The    text    in     this    document    (excluding    the Government             Logo) may be      reproduced free               of charge in any format or medium provided that it is reproduced accurately and not used in a misleading context.  The  material       must      be  acknowledged    as Government copyright and the title of the document specified.

 

 

 

 

 

Any  enquiries  relating  to  this  Report  should  be addressed to the Member-Secretary and sent either by post to the Law Commission of India, 2nd   Floor, ILI Building, Bhagwan Das Road, New Delhi-110001, India or by email to lci-dla@nic.in

 

 

 

 

 

 

 

 

 

 

 

 

 

 

D.O. No. 6(3)/155/2009-LC (LS)              30th March, 2009

 

 

 

Dear Dr. Bhardwaj Ji,

 

 

Subject: Irretrievable Breakdown of Marriage – Another Ground for Divorce

 

 

I    am    forwarding     herewith    the    217th      Report    of    the    Law

 

Commission of India on the above subject.

 

 

 

Section 13 of the Hindu Marriage Act, 1955 provides grounds for presentation of a petition for divorce.  Section 27 of the Special Marriage Act, 1954 similarly provides grounds for grant of divorce in the case of a marriage solemnized under the Act.  However, the said Acts  do  not  provide  “irretrievable  breakdown  of  marriage”  as  a ground for divorce. The Law Commission of India in its 71st    Report titled “The Hindu Marriage  Act,  1955 – Irretrievable  Breakdown of Marriage as a Ground of      Divorce”   recommended  amendments in the Hindu Marriage Act to make irretrievable breakdown of marriage as a new ground for granting divorce among the Hindus. Recently, the Supreme Court also in Naveen Kohli v. Neelu Kohli (AIR 2006 SC

1675) recommended  to  the  Union  of  India  to  seriously  consider bringing  an   amendment   in    the   Hindu   Marriage   Act,  1955   to

 

 

 

incorporate irretrievable breakdown of marriage as a ground for the

 

grant of divorce.

 

 

 

In view of the above, the Law Commission of India suo motu took  up the  study of  the subject.  The Commission examined  the extant legislations as well as a number of judgments of the Supreme

Court  and  High  Courts  on  the  subject  and  is  of  the  view  that

 

 

“irretrievable  breakdown  of  marriage”  should

 

 

be  incorporated  as

 

 

another   ground  for granting divorce under the provisions of     the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The Court before granting a  decree for divorce on the ground that the marriage has irretrievably broken down should also examine whether adequate financial arrangements have been made for the parties and children.

 

 

The Commission has accordingly made its recommendations in this Report.

 

 

With warm regards,

 

 

 

Yours sincerely, (Dr. AR. Lakshmanan)

Dr. H. R. Bhardwaj,

Union Minister for Law and Justice, Government of India

Shastri Bhawan, New Delhi-110 001.

 

 

 

 

 

 

 

 

 

 

 

 

 

Irretrievable Breakdown of Marriage – Another Ground for Divorce

 

 

 

 

 

Table of Contents

 

INTRODUCTION                                            9-

11

 

 

 

 

 

JUDICIAL VIEW/SUGGESTIONS                12-

22

 

 

 

 

 

RECOMMENDATION                                23

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I.      INTRODUCTION

 

 

 

 

1.1     Whenever the question of inclusion of irretrievable breakdown of marriage as a ground for divorce is mooted, the opponents argue that “divorce by mutual consent”  introduced  in the Hindu Marriage Act in 1976 more than covers the situation.      It is important to  note that “mutual consent” requires the consent of both the parties and if one or the other does not cooperate, the said ground is not available. ‘Irretrievable breakdown of marriage’, on the other hand, is a ground which the Court can  examine and if the Court, on the facts of the case,    comes        to               the         conclusion that      the    marriage cannot       be repaired/saved, divorce can be granted.  The grant of divorce is not dependent on the volition of the parties but on the Court coming to the    conclusion, on        the          facts pleaded,     that       the    marriage      has irretrievably broken down.

 

 

1.2        Irretrievable  breakdown  of  marriage-  The foundation  of  a sound marriage is  tolerance, adjustment  and respecting  one another.                Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage.                  Petty  quibbles, trifling differences should not be exaggerated and magnified to destroy  what  is  said  to  have  been  made  in  heaven. All

 

 

 

quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and always keeping  in  view  the  physical  and  mental  conditions  of  the parties, their character and social status.  A too technical and hypersensitive approach would be counter-productive to the institution of marriage.                          The Courts do not have to deal with ideal husbands and ideal wives.                      It has to deal with particular man and woman before it.1

 

 

1.3     In    Naveen   Kohli    v.    Neelu    Kohli2           the    Supreme     Court recommended to the Union of India to seriously consider bringing an amendment          in         the      Hindu                    Marriage      Act,   1955      to          incorporate irretrievable breakdown of marriage as a  ground for divorce in the following words:

“Before  we part  with this  case,  on  the  consideration  of  the

 

totality of facts, this Court would like to recommend the Union of India to seriously  consider bringing an amendment in the Hindu          Marriage       Act,     1955   to              incorporate           irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law

& Justice, Department of Legal Affairs, Government of India for taking appropriate steps”3

 

 

1.4     Earlier, in Ms. Jorden Diengdeh v.  S. S. Chopra4  the Supreme

 

Court observed:

 

1     Mayne’s Treatise on Hindu Law & Usage (16th    Ed.) Revised by Justice Ranganath Misra (New

Delhi: Bharat Law House, 2008),  page 292.

2             AIR   2006   SC

1675.

3             Ibid., para

96.

4               AIR  1985 SC 935.

“It    appears     to     be     necessary     to    introduce     irretrievable breakdown  of  marriage  and  mutual  consent  as  grounds  of divorce in all cases.…We suggest that the time has come for the intervention of the legislature in those matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situation in which couples like the

present have found themselves.”5

1.5     It is pertinent to notice that the Law Commission of India has already submitted a very comprehensive 71st   Report on irretrievable breakdown of marriage as a ground of divorce.  The matter had been taken up       by the Commission as a result of a reference made by the Government of India. The Law Commission under the Chairmanship of Shri Justice H. R. Khanna presented its Report on April 7, 1978. The Report considered  the suggestion  and  analyzed the same in extenso. Before embarking upon further action on the suggestion that irretrievable breakdown of marriage should be made as a ground for divorce,  the  Law  Commission  considered  it  appropriate  to  invite views              on         the     matter          by           issuing           a     brief    questionnaire.    The Commission in its 71st   Report have accepted in principle irretrievable breakdown of marriage as a ground of divorce and also examined the question  as to how exactly to incorporate  it into the Act and also further  examined  the question  whether  the introduction  of such  a ground  should  be coupled  with  any safeguards.  The  Commission also in Chapter II of the said Report considered present law under the  Hindu  Marriage  Act, merits  and  demerits    of         the          theory            of irretrievable breakdown of marriage in Chapter IV and retention of

5          Ibid., para

7.

 

other grounds of divorce in Chapter V. In Chapter VI the Commission also considered the  requirement of living apart and also suggested many   safeguards like   welfare        of              children,          hardship       and recommended   amendments  to           Sections  21A,  23(1)(a)  and  also recommended insertion of new sections 13C, 13D and 13E.

 

1.6     In the light of the above, the Law Commission suo motu took up the study on the subject.

 II.      JUDICIAL VIEW/SUGGESTIONS

2.1     A law of divorce based mainly on fault is inadequate to deal with a  broken  marriage.                               Under  the  fault  theory,  guilt  has  to  be proved;  divorce  Courts  are  presented  with  concrete  instances  of human behaviour as bring the institution of marriage into disrepute.6

Once  the  marriage  has  broken  down  beyond  repair,  it  would  be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interest of the parties.     Where there has been a long period of continuous separation, it may fairly be  surmised  that  the  matrimonial  bond  is  beyond  repair.                                                          The marriage  becomes  a  fiction,  though  supported  by  a  legal  tie,  by refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.                           Public  interest  demands  not only  that  the  married  status  should,                             as    long    as    possible,    and whenever possible, be maintained, but where a marriage has been

 6            71st       Report of the Law Commission  of India.

wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.  Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.  Human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage.    Law cannot turn a blind  eye to such situations, nor can it decline to give adequate response to the necessities  arising therefrom.7     The Supreme Court in Naveen Kohli vs. Neelu Kohli8    recommended  to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate  irretrievable  breakdown  of  marriage  as  a  ground  for divorce.

2.2     The irretrievable breakdown of marriage is not a ground for divorce by  itself.        But  while  scrutinizing  the  evidence  on  record  to  determine whether  the  grounds  on  which  divorce  is  sought                                              are  made  out,  the circumstances can be taken into consideration.                                               No divorce can be granted on the  ground of irretrievable breakdown of marriage if the party seeking divorce on this ground is himself or herself at fault.  The decree of divorce on  the  ground  that  the  marriage  has  irretrievably  broken  down  can  be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties cannot live together.  The power of the Court to grant divorce on the ground of irretrievable breakdown of marriage should be exercised  with

 7             Supra note 1, pages 292 –

293.

8          Supra note

2

much care and caution in exceptional circumstances only in the interest of both the parties.9

2.3     In  Geeta  Mullick  v.  Brojo  Gopal  Mullick10     the Calcutta  High Court held:

“In our considered opinion, the marriage between the parties can not be dissolved by  the trial Court or even by the High Court only on the ground of marriage having been irretrievably broken down, in the absence of one or more grounds as contemplated under section 13(1) of the Hindu Marriage Act,

1955.”11

 

2.4     The concept of irretrievable breakdown of marriage cannot be used as magic formula to obtain a decree for divorce where grounds for divorce are not proved.

 

2.5     In V. Bhagat v. D. Bhagat12  the Supreme Court held : “Irretrievable breakdown of the marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record  to  determine  whether  the  ground(s)  alleged  is made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind.”13

9                 Supra note 1, page

293.

10           AIR  2003  Cal.

321.

11       Ibid.,  para

7.

12           AIR  1994  SC

 

 

 

710.

13          Ibid.,  para

23. 

2.6        The Calcutta  High  Court  in  Tapan  Kumar  Chakraborty  v.

Jyotsna Chakraborty14     held that in a petition for divorce on a ground as mentioned in the Hindu Marriage Act or the Special Marriage Act, court cannot grant divorce on the mere ground of

irretrievable breakdown of marriage.

 

2.7     In   Kanchan  Devi  v.  Pramod  Kumar  Mittal15,  however,  the

Supreme Court held:

 “…the marriage between the appellant and the respondent has irretrievably broken  down and that there was no possibility of reconciliation, we in exercise of our powers  under Art. 142 of the  Constitution  of  India  hereby  direct  that  the  marriage between   the   appellant   and   the   respondent   shall   stand

dissolved by a decree of divorce.”16

2.8     There  is  no  use  of  keeping  two  persons  tied  by  the  matrimonial relationship when they cannot live peacefully.  Where wedlock has become a deadlock, since parties are living separately, and after marriage the wife has lived only for a few months in the matrimonial home, wife having made allegations of cruelty and desertion against the husband and husband having made counter-allegations against her, the court in  Krishna vs. Som Nath17 held that marriage is irretrievably broken and it is in the interest of justice that decree of divorce be granted so that both the parties can live in peace. When the court finds in facts as well as from talks of resettlement or reconciliation  between  parties  that  there  was  no  possibility  of  reunion

 14           AIR  1997  Cal.

134.

15             AIR   1996   SC

3192.

16        Ibid.,  para

6.

17               (1996)   DMC   667 (P&H).

between  husband  and wife  and  refusal  of decree of divorce would  only prolong  the agonies of the  spouses, it can dissolve the marriage on this ground.18          Where the husband and the wife are living separately from each other for the last 19 years and there is no chance of settlement between the parties                        a  decree  for  divorce  can  be  granted.19               Where  there  was  no consummation  of  marriage,  wife                being  adverse  to  cohabitation,  wife disobeyed instructions of the court to undergo medical examination to prove that marriage had not consummated, there was indecent behaviour of wife to her in-laws reflecting her mental imbalance, and the parties have been living separately  for  a  period  of  16          years  without  any  serious  attempt  for reconciliation, a decree dissolving the marriage would be proper.20

 2.9        The  Supreme  Court    in    Savitri  Pandey   v.    Prem    Chandra Pandey21          held that  marriage  between  the parties  cannot  be dissolved only on the  averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive.  The legislature, in its wisdom, despite observation of the Supreme Court has not thought it proper to provide for  dissolution of the marriage on such averments.              There may be cases where it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses.

 18         Ashok  v.  Rupa,  1996  (2)  HLR  512 (Guj).

19        Shankar  v. Puspita,  AIR 2005 Jhar.

21    AIR 2002 SC 591

92.

20              Rita   v.   Trilokesh,   AIR   2007

Gau.122.

2.10 In  Vinita  Saxena  v.  Pankaj  Pandit22, the  marriage  between Vinita Saxena and her husband Pankaj Pandit was dissolved by an order  of  the  Supreme  Court.   The  marriage  between  the  parties lasted only for five months.  Both of them were living separately for over 13 years.  Marriage also was not consummated.     Wife filed a petition for the dissolution of marriage on the ground of physical and mental cruelty and insanity on the part of the husband.                          Trial  court however dismissed  the petition.    High                                                      Court  also  dismissed     the appeal despite the failure of the husband to appear before the court. Allowing  the appeal of the wife,  a division bench of the Supreme Court speaking through Dr.  Justice AR. Lakshmanan ( as he then was ) held that the orders of the courts below had resulted in grave miscarriage of justice to the wife who had been constrained into living with a dead relationship for over 13 years and that the fact situation clearly showed that the husband  and wife can never ever stay as husband and wife and the wife’s stay with the respondent  husband would be injurious to her health. Accordingly, a          decree               of      divorce was granted in  favour of the wife against the husband. The Court held as follows:

“36.  As  to  what  constitute  the  required  mental  cruelty  for purposes of the said provision, will not depend upon the numerical count of such incidents or only on  the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious  effect  of it on  the mental  attitude,  necessary  for maintaining a conducive matrimonial home.

22              JT 2006 (3) SC

587. 

37. If the taunts,  complaints  and reproaches  are of ordinary nature  only, the                        court  perhaps           need  consider  the    further question as to whether their continuance or persistence over a period of time render, what normally would,  otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.

 

44. Spouses owe rights and duties each to the other and in their relationship they must act reasonably.                            In  every  case where cruelty exists it is possible to say that the spouse at fault has been unreasonable.   The list of cruelty, therefore,  should be reach of the duty to act reasonably, whether in omission or commission,  causing  injury  to  health.      Such    a    list    avoids imputing an intention where in fact none may exist.  Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged.

 

49.     Humane aspects which this Court should consider:

 -        The appellant was 24 years of age when she got married.

-         The marriage lasted for four to five months only when she was compelled to leave the matrimonial home. The marriage between the parties was not consummated as the respondent was not in a position to fulfil the matrimonial obligation.

–         The parties  have been  living separately since  1993.      13 years have passed they have never seen each other. Both the parties have crossed the point of no return. A workable solution is certainly not possible. Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream. Parties  have been fighting  the  legal  battle  from the year 1994.-         The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wife’s stay with the respondent is injurious to her health. –         The  appellant    has  done  her  Ph.D.         The    respondent, according    to    the    appellant,    is    not    gainfully    employed anywhere.

-         As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial court nor before the High Court.

 50. The  facts  and  circumstances  of  the  case  as well  as all aspects  pertain  to  humanity  and  life  would  give  sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being.”2.11 In Samar Ghosh vs Jaya Ghosh23   the Supreme Court referred to the 71st    Report  of the Law Commission of India on “Irretrievable Breakdown  of Marriage” with approval as follows:

 “90. We have examined and referred to the cases from the various countries.  We find strong  basic similarity in adjudication  of cases relating to mental cruelty in matrimonial matters.  Now, we deem it appropriate to deal with the 71st Report of the Law Commission of India on “Irretrievable Breakdown of Marriage”.

 91. The 71st  Report of the Law Commission of India briefly dealt with the concept of irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. In this Report, it is mentioned that during last 20 years or so, and now it would be around

50 years,  a  very  important  question  has  engaged  the  attention  of lawyers,  social  scientists  and  men  of  affairs,  should  the  grant  of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown                     theory.     It     would     be     relevant     to      recapitulate recommendation of the said Report.

 92. In the Report,  it is mentioned that the germ of the breakdown theory,  so far as  Commonwealth  countries  are concerned,  may be found  in the legislative  and judicial  developments  during  a much earlier period. The (New Zealand) Divorce and Matrimonial  Causes Amendment Act, 1920, included for the first time the provision that a separation  agreement  for  three  years  or  more  was  a  ground  for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce  or not. The  discretion  conferred  by  this  statute  was  exercised  in  a  case Lodder v. Lodder (1921 New Zealand Law Reports 786). Salmond J., in  a     passage   which       has           now                    become      classic,    enunciated  the breakdown principle in these words:

 23               (2007)  4 SCC

511. ‘The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this Court, as prima facie a good ground for  divorce. When the  matrimonial  relation  has  for  that  period  ceased  to exist de facto, it should, unless there are special reasons 

to the contrary, cease to exist de jure also.

In general, it

is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such  a  separation  the  essential  purposes  of  marriage have  been  frustrated,  and  its  further  continuance  is  in

general not merely useless but mischievous

 

     

 

.’

 

 

93. In the said Report, it is mentioned that

restricting the ground of

divorce  to  a  particular  offence  or  matrimonial  disability,  causes

injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the  marriage do not want to divulge it, yet such a situation has

arisen in which the marriage cannot survive

.

The marriage has all the

external appearances of marriage, but none in reality. As is often put

pithily, the marriage is merely a shell out of which the substance is

gone.

In such circumstances, it is stated, there is hardly any utility in

maintaining the marriage as a facade

, when the

emotional and other

bonds which are of the essence of marriage have disappeared

.

               

94. It is also mentioned in the Report that in case the marriage has ceased  to exist  in  substance  and in reality,  there is no reason  for denying  divorce,  then  the  parties  alone  can  decide  whether  their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is  unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

 95. Once the parties have separated and the separation has continued for  a  sufficient  length  of  time  and  one  of  them  has  presented  a petition for divorce, it can well be presumed that the marriage has broken  down.  The  court, no  doubt,  should  seriously  make  an endeavour  to  reconcile  the  parties;  yet,  if  it  is  found  that  the breakdown is irreparable, then divorce should not be withheld. The consequences  of  preservation  in  law  of  the  unworkable  marriage which has long ceased to  be effective are bound to be a source of greater misery for the parties.”

 2.12    Similarly, in  Sanghamitra Ghosh vs Kajal Kumar Ghosh24    the Supreme Court while referring to its earlier decision in  Ashok Hurra v Rupa  Bipin  Zaveri25,  also           reproduced  some         excerpts  from           the

aforesaid 71st Report of the Law Commission.

2.13 As stated earlier, the recent decision of the Apex Court in the case of Naveen Kohli vs. Neelu Kohli26   fully establishes the need for immediate  amendment  of  the  Hindu  Marriage  Act  to  incorporate

‘irretrievable breakdown of marriage’ as a ground for grant of divorce. The Court in that case  was dealing with a case where the parties were living separately for ten years.   There were, during this period, many             proceedings     between     the      parties,                      mostly            by              the    wife. Allegations  of misconduct were made on  both  sides, maintenance was demanded and paid and the proceedings lingered on causing deep anxiety and frustration to both sides.       The  husband  filed  for divorce on the ground available – cruelty.         The Trial Court granted him relief but the High Court turned down the divorce petition on the ground that the conduct of the wife did not fall within the parameters of ‘cruelty’ as defined in various judgments.                  The husband was bacK to square  one.  On appeal,  the Supreme  Court  granted  him relief. This was a classic case of consent being withheld by a spouse just for harassing the other spouse.                                                           The  Court  recommended  to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate ‘irretrievable breakdown of

marriage’ as a ground for grant of divorce.

 2.14 It  would  also  be  in  the  fitness  of  things  that  the  Special

Marriage  Act,  1954,  which  deals  with  the  civil marriages,  is  also considered for an amendment on similar lines.

III.     RECOMMENDATION

 3.1    It is, therefore, suggested that  immediate action be taken to introduce an amendment  in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for inclusion of  ‘irretrievable breakdown of marriage’ as another ground for grant of divorce.

3.2    The  amendment   may  also  provide  that  the   court  before granting a decree for divorce on the ground that the marriage has irretrievably broken down should also examine whether adequate financial arrangements have been made for the parties and children.

 3.3     We recommend accordingly.

 

(Dr. Justice AR. Lakshmanan) Chairman

 (Prof. Dr. Tahir Mahmood)                      (Dr. Brahm A. Agrawal) Member                                                                Member-Secretary

What do I need to know first about law firm Internet marketing?

“In modern business, it is not the crook who is feared most, it is the honest man who doesn’t know what he is doing.” Pablo Casals

There are tons of vendors out there who want to sell you websites and law firm Internet marketing services. Most are honest people who simply don’t know what they are doing. In many cases, they are attempting to sell you something that is overpriced and that won’t produce you any new clients at all, let alone good clients. The attorneys I have worked with report to me that the whole Internet marketing process confuses them. They don’t know who to believe. Some have spent considerable sums already on websites with little or no results. I aim to stop all that. So keep reading.

Do I need law firm Internet marketing?

Yes. According to Reuters News Services by 2007 there will be over nine million legal services searches done online each month. Additionally, prospective clients and clients expect you to have at least a website or think you may be behind the times if you do not. Finally, while the yellow pages are not a good attorney marketing vehicle today they are going away since people are searching the Internet and not going to the yellow pages.

What is/is not law firm Internet marketing?

Having a website is not law firm Internet marketing. At a minimum you do need at least a “brochure website” of a few pages, however, that website is unlikely to get you new business and is definitely not Internet marketing. The rest of this article (in four parts) is going to help you get clear on what Internet marketing is all about.

Where does Internet marketing begin?

Law firm Internet marketing begins with you becoming an educated consumer and then keyword research. Researching your practice’s best keywords will tell us what words your prospective clients are using to search for legal services on search engines, what legal services your prospective clients are the most interested in, what your prospective client is thinking, how to attract these prospective clients to your site at the search engine instead of going to your competitors site, what your competitors are doing/not doing, what content to write for each of your top keywords (recommend writing a page each to at least the top 20 keywords), what are the words to use for PPC law firm advertising and how to begin search engine optimization. If you have not adequately completed keyword research using software tools like Wordtracker you have not done adequate keyword research and are likely to fail at your law firm Internet marketing.

You mentioned, “…what content to write for each of your top keywords…”. What are you talking about exactly?

I am talking about what is known as the CTPM model of Internet marketing developed by Ken Evoy M.D. in 1997. This model works because it is in total alignment with how the Internet works. The C is the first part of the model and it stands for Content – create in demand content (you determine what is in demand from the keyword research). The T is Traffic – attract targeted traffic. The P is for pre-sell – pre-sell the targeted traffic (using such things as newsletters, RSS feeds, free downloads, e-books, autoresponders, audio, video, and teleclasses). The M is Monetize – this is where you convert these pre-sold prospective clients to clients easily.

You mentioned, “…tools like Wordtracker…” with respect to keyword research in law firm Internet marketing. What is Wordtracker?

Wordtracker is a software tool that can be used to thoroughly research your keywords. Wordtracker is at least arguably the best keyword research tool in the marketplace and there are others. You can go to http://www.Wordtracker.com to get all the details. Your vendor can use this tool easily and should use it for keyword research to put your law firm internet marketing on the right track from the beginning if at all possible.

You also mentioned “…how to begin search engine optimization.” What is meant by search engine optimization (SEO) and exactly what is it and how does it fit into law firm Internet marketing?

There is no mystery in SEO in particular and law firm Internet marketing in general so don’t let anyone bamboozle you on that one. As I said earlier SEO begins with appropriate keyword research. If you have not done that you are dead in the water since this is the foundation of everything that comes after in law firm Internet marketing. The next step is the “C” or content mentioned earlier in the CTPM model. You will need to write “keyword optimized” content to each of your top 20 keywords or another way to say this is writing your content in the way that search engines want to see it so they rank you higher than your competitors. Your content needs to fit together in a site plan (the term site plan refers to in what order your pages will appear and how they link to one another) that has an appropriate pyramid type structure. This pyramid type structure includes your home page (the peak of the pyramid) themed keyword phrase being supported by all the tier two pages (the next layer of the pyramid) and their tier three pages (usually the base of your pyramid although you could go deeper) support them resulting in higher rankings for all of your pages. There are some technical aspects to SEO as well like the use of clean HTML, heading text, meta tags, alt tags, site map, etc., however, mercifully I won’t go into those since they should be known to your technical person. The bottom line is put nothing in the way of the search engines spiders (spiders are sent out from the search engine to “read” the sites on the Internet) being able to “read” your site like fancy flash pages get in the way big time for instance. To know more in depth about keyword optimization you can go to http://www.Wordtracker.com where they have a really fine Keyword Research Guide if you want to know more of the details. All of what I just told you is known as “on site optimization” strategies for law firm Internet marketing. There is also “off site” optimization as well involved in SEO. Off site optimization means getting one-way links from high-ranking pages of other sites that are related to your top 20 keywords (there we are again with that keyword research being vital) that link to your site. Search engines see these links like a “vote” for your site. The more high quality “votes” you have the higher they will rank your site. The term “link popularity” is used to describe this process in law firm Internet marketing. The royal road to high quality links is having (here he goes again) keyword researched and keyword optimized quality content on your website. You get these links from website directories, article directories, online forums, press releases, etc. I left out reciprocal links because most SEO authorities think they are no longer worth the effort since they are difficult to get and don’t really contribute much (or can even hurt) to your page ranking.

We have completed the first part of law firm Internet marketing at this point. In part two we will go into Google Page Ranking, dealing with your competitors, RSS, the factors surrounding costs of law firm Internet marketing and more. I am committed to you being a master of law firm internet marketing at least to the point you will get new clients from your efforts and not get taken to the cleaners by vendors who may not know any better.

The final document in your divorce is the decree. If you and your spouse have reached an agreement, the decree normally would just recite and approve its terms. This is to say that whatever your terms were would be written out, and the judge would just sign your agreement without taking evidence or having a hearing. If you haven’t reached settlement, the decree contains the judge’s decisions regarding your debts, property and children.

Officially, nothing is final until the judge says it is. Even if you and your spouse have reached agreement, the decree has no effect until the judge approves your terms. Generally, the judge will do this. State statutes and just plain logic encourage the judge to be as efficient as he / she can. It doesn’t make sense for him / her to force two people to take up more court time if they don’t need it.

However, if the decree has terms that are “against public policy” the judge can refuse to sign it. Examples of this would be a provision that agrees that child support will never be paid, or that child custody could not be modified under any circumstances. Such provisions would deprive the court of jurisdiction in the future. The judge cannot give that up, even if he / she wants to. Circumstances could change. The judge has to be able to modify the decree to allow for those changes when it comes to the care and safety of children.

If one member of the couple threatens the other, and it comes to the judge’s attention, he / she can refuse to sign the decree. A judge can always force the parties to appear in court if he / she thinks it is necessary. In such a situation, the court might be inclined to satisfy him / herself that the agreement was made freely and voluntarily. This rarely happens. Unless an extreme situation is brought to the judge’s attention, he /she will assume that an agreement between two adults is valid, even if it favors one of them over the other.

If the couple have not reached settlement, the judge has to hear evidence regarding their case. Witnesses and exhibits are presented in court. Each side is given an opportunity to explain what they think was proven, and the judge decides who was right. He / she issues his / her conclusions in a written document called “the decree”.

Once the decree is entered, the parties are obliged to do what the judge has ordered. The custody of the children or payment of child support are decided until there is good reason to change them. Division of debts and property are finalized, and can never be changed. If the couple is unhappy with the judge’s final order, their only recourse is an appeal. If you take that route, save up your pennies.

The U.S. Trade Representative recently released its “Special 301” annual report to Congress which outlined the Administration’s global intellectual property agenda. At PhRMA we believe that maintaining global incentives for research and development of new medicines is essential for the continued development of treatments used around the world to help improve the health and lives of patients. The importance of these incentives is underscored by the current threat of a pandemic health emergency and the need for new, innovative antiviral products.

This worldwide respect for intellectual property is the engine that will enable patients around the globe to receive the benefits of future discoveries. This respect is particularly important for American patients, who otherwise end up supporting a disproportionate share of the burden for the development of new medicines. Patients around the world are waiting for the more than 2,900 medicines currently in development by PhRMA member companies.

Protecting American intellectual property also is important to the U.S. economy. For these reasons, PhRMA and its members place a high priority on addressing the harm caused by inadequate IP protection and by the market access barriers put in place by some U.S. trading partners. We appreciate efforts underway at all levels by USTR, the Departments of State and Commerce, and the effective advocacy of U.S. overseas missions to promote compliance with international obligations.

We applaud the report’s discussion on counterfeiting problems that present public health concerns in the U.S. and elsewhere in the world. Our member companies are actively engaged in seeking solutions to these problems with the U.S. Government, governments mentioned in this submission, allied industry associations, the World Health Organization and concerned health professionals and patient groups.

PhRMA and its members are committed to helping address the public health risks and other public interests that are compromised by those who traffic in counterfeit medicines.

We are concerned that Brazil’s treatment in the report does not adequately reflect the actual barriers to effective intellectual property protection in place in that country or the international pronouncements made by the Government on IP-related matters.

We share the Government’s hope that recent statements of intent by officials in Thailand to make IPR protection and enforcement a higher priority will yield results. We are concerned, however, that the lack of progress on IPR issues in Thailand was not given sufficient weight in the final determination.

At the same time, we are encouraged that the Administration has taken steps to highlight the deficiencies of China, Russia, India, Indonesia, Pakistan and some other countries. China, for instance, continues to circumvent its obligations to protect safety and efficacy data generated by innovative companies and India is no closer to implementing such fundamental protection. PhRMA appreciates USTR’s recognition of the severity of the IP concerns for pharmaceutical companies in these countries.

In addition, we applaud the Government’s recognition of progress made by Korea in IPR protection, which resulted in removing Korea from all lists in the present report. We look forward to full implementation by Korea of additional IPR protections in the KORUS FTA upon ratification.

The ‘Special 301‘ process continues to be effective in gaining high-level attention from our trading partners – attention that is needed to redress intellectual property violations and market access concerns. PhRMA and its members look forward to working with the staff of the USTR as they continue to represent the interests of American consumers, patients, workers and industry by addressing unfair trade practices in key countries around the world.

With the number of police procedurals and other similar shows on television today, most of us probably think we’re familiar with criminal law. We think we know how the legal process works, and what we should do if we’re ever confronted by the police, arrested, or, worse yet, charged with a crime. Unfortunately, like most things on television, the portrayals on these shows aren’t entirely accurate.

What to Do in Case of an Encounter with the Police

If the police approach you either in or away from your home, the first thing you should do is remain calm. Any erratic or abusive behavior toward the police will only make your situation worse. You should also be aware that unless the police have a warrant, they are not allowed to enter your home except under very specific circumstances. They are also not allowed to search your car, although the guidelines here are a bit more lenient.

Some circumstances under which the police might be justified in entering your home without a warrant include:

The police have reason to believe someone inside your house is in immediate danger The police feel that you are a flight risk There is reason to believe evidence within the house might be compromised if they don’t make immediate entry

Similar rules exist for entering or searching your car. If the police do enter your home or search your vehicle without a warrant, be sure your lawyer is aware of the circumstances, as this could be a major factor in your favor if your case goes to trial.

During any conversation with or in the presence of the police, do not make any statements that could be construed as an admission of guilt. In fact, if you’ve been charged with a crime and are arrested, any conversations with authorities are best saved until you can have a lawyer present.

How to Find a Good Criminal Lawyer

An experienced criminal lawyer can help you navigate your way through the complex legal system you’ll have to face if you’re accused of a crime. A good lawyer can make the difference between a permanent black mark on your record and a “not guilty” verdict or even a dismissal of your case. When you’re looking for a lawyer to represent you, look at their past history and how cases they’ve handled have been settled. Extensive experience and a high number of “not guilty” verdicts indicate a lawyer who can give you the help you need to deal with your situation.

Everyone has heard the old line “there are too many lawyers”.  While this may be true, the next question one must as is…why?  Why is pursuing law such a popular path to follow and what exactly are the benefits and negatives of pursuing a law degree?  In this article I’ll explore the ‘right’ reasons and also some ‘wrong’ reasons to pursue this time consuming and expensive undertaking.

The Love of Law

The first and ‘best’ reason to pursue a Law Degree is of course that you absolutely LOVE the law.  Do you sit up late at night debating controversial legal issues with your friends?  Do you find yourself getting into heated arguments over the right to fair trial of non-citizen combatants in the Iraq war or perhaps the various ethical and legal sides of the abortion issue.  Is your favorite channel C-span or Court TV and is your book shelf full of books about famous legal cases or issues? 

If this sounds like you then you might be law school material.  The best lawyers…and law students have a PASSION for the law.  They don’t look at reading 500 pages of a constitutional law book as work, they relish it.  While there are certainly other good reasons to go to law school, perhaps no other is as good a predictor of success as your love of the subject matter. 

Critical Thinking

One of the often overlooked but perhaps most important skills you learn by attending law school is the development of your critical thinking ability.  The ability to look at an issue from its various sides, do the research to fully understand the intricacies of an issue and the ability to argue and defend your position are incredibly valuable skills that will serve you for the rest of your life in and outside of the law field. 

Many attorneys find that the research and critical thinking skills help them in areas they never even considered from personal relationships to managing employees and building a business.  Of course these skills are crucial in the legal profession itself, but a legal education can be a great exercise in improving one’s ability to handle the complex negotiations of life.

Career Dynamite

Obtaining a law degree can be a tremendous asset when paired with a degree or specialized knowledge in another field.  By using your specific knowledge and experience and having a law degree you then are perfectly tailored to work as legal counsel for a plethora of fields. 

For instance a pharmacy degree paired with a law degree makes you a great asset as counsel in a firm that specializes in pharmaceutical firms.  Architecture, real estate or construction experience teamed with a law degree can make you a great real estate attorney.  The real world experience you possess in the specific field makes you an invaluable asset to law firms that might have top notch attorneys but little hands on, practical experience in that field.

Wrong Reasons

It is very important to be aware of the wrong reasons to pursue a law degree…and there are many.  Some people decide to go to law school because they simply don’t know what else to do.  Besides being an obvious waste of time, most often these people do not end up even working in the legal profession. 

Others want to become an attorney not because they really like law, but because they want the perceived ‘prestige’ that having a law degree attaches.  People that go to law school for this reason tend to have self-esteem issues and are looking to fill a void with the ‘title’ of lawyer even though they really have very little passion for the profession.  They often don’t really know what they want to do and think spending three years in school is a way of either staying out of the ‘real world’ or that they’ll ‘figure it out’ in law school.  Law school is so work intensive that is highly recommended you don’t attend unless you really know you want it for the right reasons.

Finally, there’s the money.  While any profession is ultimately responsible for giving you a pay check, potential law school candidates should be aware that the vast majority of lawyers don’t make gobs of money.  While it is true that if you attend a top, Ivy League school and get into a top firm you can make a very good living, this is really only something that a very small percentage will accomplish.  The big money starts if you make Partner in a firm, which is highly competitive and can take many years.  For those simply looking to make good money, there are other professions that are comparatively easier to accomplish this in finance and banking and without the need to attend law school.  However, if your passion is the law then there are certainly great financial rewards for those that position themselves correctly.  For more great articles and insights please visit www.TopTenLawSchools.com.