Divorce and money rights

Mumbai: The news of Jeff Bezos and Mackenzie Bezos’s divorcegrabbed a lot of headlines recently as the couple worked out a billion dollar settlement. When it comes to India, maintenance and alimony are subjects of great debate. Hence, it always helps to know the basics.

In layman’s terms alimony and maintenance is monetary compensation granted to a spouse who is unable to support himself or herself. “The compensation depends on the matrimonial laws specific to specific religions. Or civil laws like the Special Marriage Act 1954 and 125 CrPc Common Social Welfare Law,” said Mumbai-based lawyer Mrunalini Deshmukh. Broadly speaking, there are two types of alimony and maintenance. “For the sake of understanding we can say that the maintenance amount is given during the time of court proceedings. The second type is given after the legal separation. The former is called interim alimony and maintenance and the latter is called permanent alimony and maintenance,” said Deshmukh.

Permanent alimony is a provision that comes into effect upon the dissolution of the marriage or judicial separation. Here the amount fixed by the court is required to be paid either as a lump sum amount or as a fixed periodic payment. These payments stop upon the death of either of the spouse or a date given by the judge.

Under the Hindu Marriage Act 1955, both husband and wife can ask for it. “But, it’s usually the woman who gets the maintenance from the husband. But there have been cases where the court has ordered the wife to pay maintenance. For instance, in case of husband’s physical disability that prevents him from earning,” said Mumbai-based advocate Pratibha Bangera at Top Rite Juris.

There is no one fixed formula to decide the amount. There are a number of factors that are taken into account. “There are various factors like income of both spouses, their standard of living, financial status, net worth, as well as each individual’s financial need, that are taken into account,” said advocate Bangera. “Generally, it’s 1/3rd to 1/5th gross earnings of the spouse who has to pay when it’s a lump sum alimony and not more than 25% of husband’s salary as monthly maintenance as per a Supreme Court judgement last April,” he added.

If the woman is earning and there is a substantial difference between her net worth and her husband’s net worth, she still may be granted alimony for the same living standards as her husband’s.

“Alimony does not constitute child support,” said Deshmukh. Maintenance of children has to be provided separately. “The husband is not required to pay in case the wife remarries, though he still is supposed to pay a maintenance amount to support children,” said Bangera. Common sense says a lump sum amount is better than a periodic payment. After all, a rupee today is more valuable that a rupee tomorrow as per time value of money. Lump sum gives more certainty, plus it’s not taxable either. As far as regular fixed pay goes, it can stop after a while in case of the spouse’s job loss, plus it is taxed in the hands of the receiver.

In case the spouse stops or delays payments there’s a recourse.“You can approach the court in such a case and petition the court to attach the husband’s salary,” said Bangera. Here the maintenance amount is deduced by the spouse’s employer and given to you before the person is paid the salary. “All kind of jewellery, property and other valuables, including cash, appliances, gadgets, given to the woman at marriage, before marriage or during the course of marriage is part of streedhan. This includes items given from family, relatives, friends, husband, in-laws and acquaintances. This also includes the woman’s earning before or after marriage as well as savings and investments made from her earnings,” said Bangera.

Divorce is not easy, but knowing your rights and getting what’s right fully yours will only made your future life a little bit easier.


U.S. Department of Education Releases Guidance on Civil Rights of Students with Disabilities

The U.S. Department of Education released three new sets of guidance today to assist the public in understanding how the Department interprets and enforces federal civil rights laws protecting the rights of students with disabilities. These guidance documents clarify the rights of students with disabilities and the responsibilities of educational institutions in ensuring that all students have the opportunity to learn.

The guidance released today includes a parent and educator resource guide; a Dear Colleague letter (DCL) and question and answer document on the use of restraint and seclusion in public schools; and a DCL and question and answer documents on the rights of students with disabilities in public charter schools.

“These guidance documents share information with our full school communities – educators, parents, and students – about important educational rights, including school obligations to identify, evaluate, and serve students with disabilities,” said Catherine E. Lhamon, the Department’s assistant secretary for civil rights. “Vigilant attention to the rights of students with disabilities will help ensure fair treatment for every student and that every student has equal access to educational programs and has an opportunity to experience success.”

The Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools, issued by the Department’s Office for Civil Rights (OCR), provides a broad overview of Section 504 of the Rehabilitation Act of 1973 (Section 504). The guidance describes school districts’ nondiscrimination responsibilities, including obligations to provide educational services to students with disabilities, and outlines the steps parents can take to ensure that their children secure all of the services they are entitled to receive.

Among other things, the Section 504 Parent and Educator Resource Guide:

  • Defines and provides examples to illustrate the meaning of key terms used in Section 504.
  • Highlights requirements of Section 504 in the area of public elementary and secondary education, including provisions related to the identification, evaluation, and placement of students with disabilities, and procedures for handling disputes and disagreements between parents and school districts.

The second guidance package released by OCR addresses the circumstances under which use of restraint or seclusion can result in discrimination against students with disabilities, in violation of Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (ADA). The Department’s May 15, 2012, Restraint and Seclusion: Resource Document suggested best practices to prevent the use of restraint or seclusion, recommending that school districts never use physical restraint or seclusion for disciplinary purposes and never use mechanical restraint, and that trained school officials use physical restraint or seclusion only if a child’s behavior poses imminent danger of serious physical harm to self or others. The DCL and question and answer document released today offer additional information about the legal limitations on use of restraint or seclusion to assist school districts in meeting their obligations to students with disabilities.

The third guidance package released today was developed by OCR and the Office of Special Education and Rehabilitative Services (OSERS). The jointly-issued Dear Colleague Letter and question and answer documents will help update educators, parents, students, and other stakeholders to better understand the rights of students with disabilities in public charter schools under Section 504 and IDEA. These documents provide information about how to provide equal opportunity in compliance with Section 504 in key areas such as charter school recruitment, application, admission, enrollment and disenrollment, accessibility of facilities and programs, and nonacademic and extracurricular activities. The documents are responsive to the U.S. Government Accountability Office’s 2012 report, Charter Schools: Additional Federal Attention Needed to Help Protect Access for Students with Disabilities, which included the recommendation that the Department issue updated guidance on the obligations of charter schools.

“It is critical to ensure that children with disabilities have access to a free appropriate public education in charter schools,” said Sue Swenson, delegated the authority to perform the functions and duties of the Department’s assistant secretary for special education and rehabilitative services. “These guidance documents are designed to support states, local education agencies, and charter school personnel to understand their responsibilities under IDEA and Section 504.”

The Section 504 Charter guidance:

  • Explains that charter school students with disabilities (and those seeking to attend) have the same rights under Section 504 and Title II of the ADA as other public school students with disabilities.
  • Details the Section 504 right to nondiscrimination in recruitment, application, and admission to charter schools.
  • Clarifies that during the admission process a charter school generally may not ask a prospective student if he or she has a disability.
  • Reminds charter schools, other entities, and parents that charter school students with disabilities have the right to a free appropriate public education (FAPE) under Section 504.

The IDEA Charter guidance:

  • Emphasizes that children with disabilities who attend charter schools and their parents retain all rights and protections under Part B of IDEA (such as FAPE) just as they would at other public schools.
  • Provides that under IDEA a charter school may not unilaterally limit the services that must be provided a particular student with a disability.
  • Reminds schools that the least restrictive environment provisions require that, to the maximum extent appropriate, students with disabilities attending public schools, including public charter schools, be educated with students who are nondisabled.
  • Clarifies that students with disabilities attending charter schools retain all IDEA rights and protections included in the IDEA discipline procedures.

In addition to these documents, the Department also released a Know Your Rights document designed for parents to provide a brief overview of the rights of public charter school students with disabilities and the legal obligations of charter schools under Section 504 and the IDEA.

The mission of OCR is to ensure equal access to education and to promote educational excellence throughout the nation through the vigorous enforcement of civil rights. Among the federal civil rights laws OCR is responsible for enforcing are Title VI of the Civil Rights Act of 1964; Title IX of the Education Amendments of 1972; Section 504 of the Rehabilitation Act of 1973; and Title II of the ADA. The mission of OSERS is to improve early childhood, educational, and employment outcomes and raise expectations for all people with disabilities, their families, their communities, and the nation. OSERS is responsible for administering the Individuals with Disabilities Education Act of 2004 (IDEA).

For more information about OCR and the anti-discrimination laws that it enforces, please visit its website and follow OCR on twitter @EDcivilrights. For more information about OSERS and IDEA, please visit its website and follow OSERS on twitter @ed_sped_rehab.


Bruised but not broken: Bail for Delhi professor GN Saibaba is a boost for all rights activists

Justice Jagdish Singh Kehar threw Shylock at the lawyer representing the State of Maharashtra on Monday as he tried to convince the Supreme Court against granting bail to wheelchair-bound Delhi University professor Gokarakonda Naga Saibaba. The academic had been arrested in May 2014 under the draconian Unlawful Activities (Prevention) Act after the Gadchiroli police claimed that he had links with Maoists and was “likely to indulge himself in the anti-national activities”. But the bench was sceptical. “Do you want to extract a pound of flesh?” the judge asked.

The bench held the counsel’s submission to be “extremely unfair”. Keeping in mind the medical condition of Saibaba, who now suffers from 90% disability after being struck with polio as a child, and the fact that all material witnesses in the trial had been examined, the government ought not to have even opposed the bail, the bench said.

As news about Saibaba’s bail trickled out, among the first to celebrate on Facebook was Jawaharlal Nehru University student Umar Khalid, who had himself been arrested on sedition charges on February 23 after allegedly anti-national slogans were chanted at an event on campus about Kashmiri autonomy that he had helped organise. Khalid’s jubilation wasn’t surprising. After all, his 12-year-old sister, Sarah Fatima, in a short speech on March 18 when her brother and his co-accused Anirban Bhattacharya were released on bail, had expressed the hope before hundreds of students that Saibaba – an inspirational figure for many progressives – would come out of prison soon.

Saibaba’s long record as a fighter on various rights issues makes him a person to be watched from both sides of today’s polarised ideological and political battle lines. The administration has already made it clear that they expect him to participate in more “anti-national” activities. Human rights activists, however, will count his departure from Nagpur Central Jail as an important addition to the struggles in universities across the country and in the forests of the mineral-rich belt of Central and Eastern India.

Precarious condition

Saibaba is today a frail man in precarious health. His long incarceration in the confines of the high-security Anda barrack of the Nagpur prison has taken a considerable toll. This makes many worry whether he will be able to do as much as he has done before. I have no doubts on that score.

I had the opportunity to meet Saibaba during his six-month period of interim bail from June to December 2015. The Saibaba I met then was a pale shadow of the person I had met in April 2014, just before his arrest. Fourteen months of harsh prison life and denial of basic medical care had forced him to seek intensive treatment at the Indian Spinal Injuries Centre in Delhi. This was where I met him. He was in continuous pain. But just a few minutes into our interaction it became clear to me that Saibaba was nowhere near giving up.

He was then out on an interim bail for medical treatment. It was given first for three months and then extended for another three months. I told him that, considering his health, his interim bail would definitely be made permanent. He refused to comfort himself with such expectations. So when on December 23, 2015, the Nagpur Bench of the Bombay High Court unexpectedly ordered Saibaba to go back to jail within 48 hours, he was well prepared. He did not want any frantic appeals before Supreme Court vacation benches. He opted for the dignified path of returning to jail while applying for bail in the normal course. This meant an uncertain length of time again in the Anda barrack. He has been granted bail after three and half months but he had mentally prepared himself for more.

During the hearings on bail before the Supreme Court, the bench had offered Saibaba the option of taking an exemption from appearing physically at each hearing, which could have saved him the excruciating pain of the 340 km journey to and fro in a police vehicle for each court session. Saibaba, however, would have none of it. His trial lawyer, SP Gadling said that he insisted on being present on every court date. The trial was his fight and he was not one to run away from it.

As soon as Saibaba reaches home in Delhi, he will most likely have another stint in hospital to continue his treatment, which had been cruelly cut short by his December return to jail. But I do not expect that even hospital will stop him from entering the fray of the many issues demanding to be addressed.

Bastar crisis

One crucial issue is the crushing of democratic space in Chhattisgarh’s Bastar district. It is widely believed that Saibaba was targeted and implicated on the farcical charges of the present case because of his extensive campaigning against the Salwa Judum militia and the human rights violations that accompanied the Operation Green Hunt operation against Maoists that was launched under the previous United Progressive Alliance government.

The last few months since October 2015 have had reports of a sharp rise in human rights violations by security forces against Bastar tribals. Journalists have reported about gang rapes and sexual assaults, fake encounters, false and forced surrenders. New vigilante groups with state backing have been launched, which have been in the forefront of evicting journalists and lawyers who have been providing much needed legal aid. Journalists who have insisted on doing their job of reporting have been even put in jail.

All this requires determined campaigns to call for the truth about these blatant rights violations. Saibaba, even a Saibaba who is physically much weaker, can be expected to be a strong voice in such campaigns. He has done it before and he can be expected to do it again. His will be a voice that will deepen and further embolden the cry for azadi. This will have its consequences – more attention from the state, more hardship, more pain. But Saibaba has never backed off from the good fight.


UN Human Rights Chief Warns of Implications of Apple-FBI Row

UN Human Rights Chief Warns of Implications of Apple-FBI Row

An FBI demand that Apple unlock an iPhone risks setting a dangerous precedent that could have a chilling effect on human rights, the United Nations rights chief warned Friday.

Zeid Ra’ad Al Hussein’s intervention came after Apple’s largest rivals backed the tech giant’s bid to resist the US government demand seeking to access the iPhone used by one of the attackers in a deadly rampage in San Bernardino, California in December.

“In order to address a security-related issue related to encryption in one case, the authorities risk unlocking a Pandora’s Box that could have extremely damaging implications for the human rights of many millions of people, including their physical and financial security,” Zeid said in a statement.

He warned that the FBI order would “set a precedent that may make it impossible for Apple or any other major international IT company to safeguard their clients’ privacy anywhere in the world”.

The FBI wants to unlock the iPhone used by Syed Farook, who was behind the San Bernardino massacre along with his wife Tashfeen Malik that left 14 people dead.

(Also see:  What if the San Bernardino Shooters Had Been Using a Samsung Galaxy Phone?)

The agency has argued that by introducing encryption that can lock data, making it accessible only to the user, Apple and other tech companies are essentially creating “warrant-proof zones” for criminals and others that will cripple law enforcement and jeopardise public security.

Apple has in return said that the only way to unlock the handset would be to introduce a weakened operating system, which could potentially leak out and be exploited by hackers and foreign governments.

‘Gift to authoritarian regimes’
Zeid said the FBI “deserves everyone’s full support” in its investigation into what he described as an “abominable crime”.

But he added: “This case is not about a company – and its supporters – seeking to protect criminals and terrorists, it is about where a key red line necessary to safeguard all of us from criminals and repression should be set.

“There are many ways to investigate whether or not these killers had accomplices besides forcing Apple to create software to undermine the security features of their own phones.

“It is potentially a gift to authoritarian regimes, as well as to criminal hackers.”

Zeid said encryption tools were widely used around the world, including by human rights defenders, civil society, journalists, whistle-blowers and political dissidents facing persecution and harassment.

(Also see:  Apple Digs in for Long Fight, Lawyer Says ‘There Is No Middle Ground’)

“Encryption and anonymity are needed as enablers of both freedom of expression and opinion, and the right to privacy. Without encryption tools, lives may be endangered.”

Three tech associations representing Apple’s main business rivals – including Google, Facebook,Microsoft and Yahoo – said Thursday they supported Apple’s efforts to challenge the order.

“If the government arguments prevail, the Internet ecosystem will be weakened, leaving Internet users more vulnerable to hackers and other bad actors,” said a statement from the Computer and Communications Industry Association, which announced the joint brief with the Internet Association and the i2Coalition of Internet infrastructure firms.

But relatives of some of the San Bernardino victims backed the FBI bid in a legal brief filed in the court where the case is being heard.

They said Apple wanted to portray the debate as “one in which the privacy interests of millions of Americans are at stake in order to obtain sympathy for its cause.”

“What is implicated here is the United States’ ability to obtain and execute a valid warrant to search one phone used by a terrorist who committed mass atrocities,” the brief said.

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Tags: Apple, Encryption, Facebook, FBI, Google, iPhone, Microsoft, Mobiles, Tim Cook, Yahoo