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Please note that the following content serves only informative purposes and does not claim legal responsibility. The German version applies, in case of legal issues.
On this site, you may find the data privacy statement of Edelmetalle direkt GmbH for orders and purchases through https://www.edelmetalle-direkt.com.
We, Edelmetalle direkt GmbH and operator of the online shop www.edelmetalle-direkt.com, take the protection of your personal data very serious.
The use of our websites is generally possible without giving private data. Only the IP-address must be transmitted due to technical reasons. However, should you wish to make use of certain services or offers of our Internet presence, the processing of personal data may be necessary.
We collect, process and use personal data only in compliance with the legal requirements and according to this present data privacy statement, as well as if need be, further with you expressly concluded, written terms.
Please read this Data Privacy Statement carefully. The scale, nature, purpose, use and processing of the collected data of people who come into contact with the Edelmetalle direkt GmbH via this website, shall be explained to you.
Furthermore, you as an affected person, the person whose personal data is stored, processed or forwarded, are informed of your rights through this data privacy statement.
You may find additional information about your rights in our General Terms and Conditions (GTC) in the so called “footer area” at the bottom end of our websites.
First of all a definition of what you can expect of “personalized data”, according to the Federal Data Protection Act (Bundesdatenschutzgesetzt, BDSG) and the General Data Protection Regulation (Datenschutzgrundverordnung, GDPR): particulars about personal or factual circumstances of a specified or specifiable natural person. Among these particulars are e.g. your name or contact information, such as your telephone number, address and email address.
On this website, personal data is only collected to the extent necessary and is treated and protected with the greatest care possible. Under no circumstances will the collected data be sold or submitted to third parties for any other purposes than the ones listed here, without your consent.
At the same time, we wish to point out that the online data transmission (e.g. when communicating by email) may be subject to security breaches. It is thus impossible to guarantee absolute protection for the data from access of third parties. However, we do our very best to protect your data!
In general, we only collect and use personalized data of our users to the extent of having a functional website as well as functional content and good performance. The collection and use of personalized data is only carried out after we received the agreement of the user. An exception being those cases, if it is out of factual reasons impossible to previously get the consent and the processing of the data is legally allowed.
The transmitted data enables us to carry out your purchase or sale of precious metals easily, safely and comfortably through our online shop. However, if you do not wish to use the online shop, you can easily make a personal appointment without revealing any personal information, purchase precious metals directly from us within the boundaries of an over the counter transaction.
to protect the legitimate interests of our company, that of a third party, however the fundamental rights and liberties of an aggrieved party, do not outweight the interests mentioned above.
The personalized data of an aggrieved party are deleted or blocked as soon as the purpose of storage is no longer applicable. The storage may be extended longer than this period should a legal retention period require so, e.g. in accordance with the fiscal code and the commercial code. The legal retention period, that we naturally comply to, is ten years.
Websites that are accessed by the system of the user through our website.
Legal provisions demand and allow the temporary storage of this data and logfiles.
The temporary storage of the IP address by the system is necessary to be able to run the website successfully on the user’s computer. Thus, the IP address must be stored for the duration the website is visited. Until then, the data is stored and after the website is no longer visited, automatically deleted. Because the data is inevitable for the website to operate correctly, the user has no option to object to the processing of this data.
You can also register on our website. We process the personalized date you provided and, again, do not give them to third parties. Storing the data enables you to log into our shop anytime with your email address and your personal password and (re-)order products.
Optional: addition to your address.
Reason: The processing of your personalized data is inevitable for the completion of a contract or pre-contractual measures. However, it may also be carried out based on your consent.
Moreover, it is also necessary to hold the content and services on our website in readiness.
If you are a registered user in our online store and have not used our shop for at least one year and three months, all personal data stored in our system is deleted, should no legal requirements say otherwise. You do not have to further concern yourself with it!
However, in this context, we ask for your understanding that you will have to re-register to our system should you have not visited our online shop for more than one year and three months.
Do you have further questions? In that case, the Edelmetalle direkt GmbH offers a contact form or you may contact us directly via e-mail. Naturally, we require an e-mail address to know who sent the mail and to whom we shall send the answer. All other information may be given voluntarily. This information is therefore stored and processed. Furthermore, this information is used to establish contact between you, as a customer, and us. Thus, we are able to answer your questions correctly and may come back to an earlier e-mail for additional questions.
When filling out the contact form, you give your consent to the processing of your data by sending the contact form. The contact form also refers to this site.
Purpose of the data input to the contact form is to establish contact with us.
Sie können zur Kontaktaufnahme auch unsere Email-Adresse nutzen. Ihre Email wird bei uns verarbeitet. Es erfolgt in diesem Zusammenhang keine Weitergabe der Daten an Dritte. Die Daten werden ausschließlich für die Verarbeitung der Konversation verwendet.
Legal basis for the data processing is a voluntary compliance in accordance with section 6, subsection 1, first sentence GDPR.
You may at any time send us a declaration of revocation disallowing further use.
Should you desire to contact us because you wish to conclude a contract, then the legal basis is the fulfillment of the contract or a condition precedent to the contract.
The data are deleted as soon as the purpose of the data processing has been fulfilled. The purpose can differ in the case of contact establishment from case to case. It is possible that a legal retention period is hindering the immediate deletion (§ 257 Com. Code).
The transmission of your IP address to the server is carried out automatically. Thus, our server receives your IP address when you visit our website. It is inevitably transmitted to third parties if you use their provided services linked to our website, e.g. You Tube videos, maps by Google Maps, specific fonds or other digital resources. This data privacy statement mentions which components of which specific third party is embedded. Therefore, you can see who the recipients of your IP address are or rather to which category of recipients your IP address is transmitted when using any embedded services provided by third parties.
We assure you that we do not transmit your personalized data in any other cases of automated transmission of IP addresses to third parties when using their embedded, provided services.
Exceptions: if we are legally required to do so (e.g. in case of a court order, to the corresponding authorities), if you previously gave your consent and we use an external service provider to fulfil specific processing parameters. Your data is on no account sold to anyone.
External service providers are mandated to e.g. deliver packages or process payments. Specific example: when we send your packages, a logistician must know where the package is supposed to be delivered to.
The contractual relationships to these service providers are handled in accordance with this data privacy statement and the regulations of the BDSG.
it is legally allowed and neccessary for the execution of the contractual relationship with you (according to art. 6 par. 1, first sentence, let. b GDPR).
Naturally, we wish to make your visit of our website as attractive as possible. Therefore, it is necessary to have i.a. a statistical analysis which in turn requires data about the use of the specific websites. For these statistical reasons and to enable the use of specific functions (e.g. automated log ins) we use on different sites so called cookies.
Cookies are small files that can be stored by our shop on your terminal (e.g. computer, laptop, smartphone etc.) when you use our website. Some cookies, so called session cookies, are deleted when you close your browser, others remain on your terminal and enable us to recognize your browser at your next visit (persistent cookies). Cookies do not harm your terminal in any way. They do not contain any viruses, Trojans or any other malware! All cookies are deleted after the legal retention period (§ 257 Com. Code).
The data processed by cookies are important for the protection of our rightful interests as well as those of third parties (according to art. 6. par. 1 first sentence let. f GDPR).
Most of the browsers accept cookies automatically. You can also adjust your browser in a way that you are informed about the insertion of cookies and can decide on their acceptance either individually or categorically deny cookies in some cases. However, the denial of cookies may restrict the comfortable use of our shop.
There are also a few third-party services linked in our online shop, e.g. videos on YouTube, maps from Google Maps, links to external texts, videos and graphs. It is important for those services that the third parties of those services collect the IP-address of the user.
You need a valid IP-address for a third party to be able to send the particular contents to the browser of the particular user. Thus, the IP-address is needed for the presentation of this content.
We have embedded videos that you can watch from YouTube on some of our subpages. More or less anyone can upload “his/her” videos onto the internet platform YouTube and everyone can watch those videos that were uploaded by someone else – everything for free and with the function to comment on those videos. The operator of YouTube is the YouTube, LLC, 901 Cherry Ave., San Bruno, CA 94066, USA, a company subsidiary of the Google Inc., 1600 Amphitheatre Pkwy, Mountain View, CA 94043-1351, USA.
If you watch a YouTube-video at least the following information is transmitted to YouTube, according to our level of knowledge: IP-address of your terminal, cookie-ID, the specific internet address of the website visited through us, time and date of the visit (time of the system) and the type and version of the used browser.
The transmission is independent from the fact whether you have a user account from Google or not and also whether you were for the duration of watching the video logged in or not.
However, should you have a Google-account and were logged in when you visited our homepage, are YouTube and Google Inc. able to know which subpages you visited, regardless whether you watched a video or not. This information is linked with the Google- or YouTube-account, stored and a user profile is created that can be used for advertising and market researching purposes or others.
We therefore urge you to log off from your Google- or YouTube-account before you visit our Website, should you not wish for such data transmissions by Google Inc. or YouTube.
This website uses the map service Google Maps through an API to display an interactive map and to create a route map. Google Inc., 1600 Amphitheatre Parkway Mountain View, CA 94043, USA is the provider of this map service.
By using the services of Google Maps, information about the use of our website can be transmitted to a server of Google in the US and stored there. Therefore, it is necessary for the use of Google Maps, that your IP-address is stored and transmitted to Google. They are then allowed to forward this data to third parties if it is either prescribed by law or the data is processed by a third party Google has instructed.
The Edelmetalle direkt has no influence on this kind of data transfer.
In general, it is technically possible that Google identifies the person who used the services of Google Maps by using the data transmitted to them through Google Maps. It is further possible that personalized data and personality profiles of the people using this website are used by Google for other purposes. Again, the Edelmetalle direkt has no influence on that.
We offer PayPal as a possible payment option to settle the invoice. PayPal is a so-called payment service provider through that you can pay online. PayPal has the function of a custodian between the recipient of the payment and the sender of the payment. Furthermore, PayPal offers the payment sender so called services of customer protection. This is the address of the European operating company of PayPal: S.à.r.l. & Cie. S.C.A., 22-24 Boulevard Royal, 2449 Luxembourg, Luxemburg.
Each user of PayPal has a so-called PayPal-account which is basically a virtual business or private account. An e-mail address is linked to the PayPal-account instead of a bank account. Furthermore, payments can be conducted with credit cards that are linked with a PayPal-account.
Name, first name, e-mail address, full address, your IP-address, if necessary telephone number, if necessary mobile number as well as possibly further data that are necessary to conclude the payment through PayPal. The latter also include personalized information about the value and content of each order or the concluded act of sale, respectively. PayPal can only ensure customer protection with all that information. Other purposes of this processing of personalized data by PayPal are the payment execution as well as the avoidance of fraud. Naturally, Edelmetalle direkt will only transmit data if a legitimate interest for the transmission exists.
What other things might PayPal do with the transmitted personalized data? – It is quite possible, e.g. that PayPal again transmits the received data to other companies that can give information about the economic situation of the person in question: credit agencies (e.g. Schufa Holding AG, Creditreform etc.) The purpose of this action is to test the credit-worthiness as well as the identity.
PayPal also reserves the right to transmit the received data to other linked companies, subcompanies or renderers of services with the goal to fulfil the contractual obligations.
If you condone the storage, processing and transmission of your personalized data by PayPal, you may revoke your already given agreement any time. However, this does not apply to personalized data that are inevitable for the conduction of the payment, due to legal boundaries.
You may find further information about the use, storage, processing and transmission of personalized data by PayPal in the data privacy statement of PayPal: https://www.paypal.com/ie/webapps/mpp/ua/legalhub-full?locale.x=en_US.
You can request information about what personalized data is stored, where it originated and for what reason it is stored. Furthermore, we are to inform you what data is transmitted to third parties. In that case, you are to be informed about the identity of the recipient or the categories of the recipients, all according to art. 15 GDPR.
Should the personalized data be false or incomplete you may demand correction or addition, according to art. 16 GDPR.
You may object to the processing of your personalized data for advertising purposes. In that case, your data must be blocked.
According to art. 18 GDPR, you have a right of limitation of processing, if you deny the correctness of your personalized data for the time that enables the responsible party to verify the correctness of the personalized data. Additionally, if the processing is unlawful and you refuse the deletion of the personalized data and demand a limitation of the use of that data or the responsible party no longer requires the personalized data for the purpose of processing but still requires them for the enforcement, exercise or protection of legal claims or if you have objected to the processing according to art. 21 par. 1 GDPR and it is not yet clear whether the reasons of the responsible party outweigh your reasons.
You can demand the deletion of your data. This is possible if the legal ground for data processing is either missing or has ceased to apply. The same comes into effect in case the reason for data processing has ceased to apply due to expiration or other reasons. Please note that the deletion of an existing retention period or other interests of our company, that are deemed legitimate, may be opposing to the deletion. We are happy to inform you of that should you request us to do so. If we have published your data, we are obliged to inform every recipient that you have demanded the deletion of this personalized data or every copy of them, according to art. 17 GDPR.
Additionally, you have a right of objection if your legitimate interests outweigh the interest of processing, due to a personal situation. However, this does not apply if we are bound by law to execute the data processing.
You have the right to file a complaint to a controlling authority if you believe the processing of personalized data, that concerns yourself, infringes upon data privacy regulations, regardless of how administrative law or courts have decided, according to art. 77 GDPR.
You have the right to demand either the transmission of personalized data concerning yourself to another responsible party or to have them handed out by the responsible party in a structured, well-established and machine-readable format, according to art. 20 GDPR.
Your personalized data is encrypted with SSL during the ordering process as well as when using the contact form. You can see that the encryption is active when you look at the command line and see the “https://”. If the encryption is deactivated, it merely says “http://”. With an active SSL-encryption, outsiders are unable to read the data transmission from your terminal to our server.
Edelmetalle direkt deliberately does not use the services of a so called “cloud”. These services can be found more and more often when outsourcing data to external service providers. Your customer data as well as our processing programs we use for the data stay on our own servers and local computers. The servers are located in specifically secured rooms that only we have access to. It is essential that all computers are protected against unauthorized access, according to state of the art technology. We do our best in this regard. However, we fear that it may not enough to protect against the NSA and others in that category.
The access to your user account is only possible when entering your personal password. We urge you to keep your access information confidential at all times and to close your browser as soon as we have concluded the communication, especially when you use the terminal together with others.
Additionally, concerning shop software, we work with software of own production especially regarding data privacy. It is still customary to find precious metal shops that work with “open source” programs that have been on the market for a couple of years. They are an open book to anyone who understands the source code, as it is openly accessible online.
XI. Renouncement of Google Analytics, Facebook-Plug-Ins., Twitter etc.
We deliberately renounce these strong tools for analysis as well as a multitude of marketing tools from the realm of social media. Data privacy protection is more important to us and we see certain additional risks in the use of these tools that we do not wish to take in the interests of our customers.
Do you still have questions concerning data privacy? Your trust is important to us, therefore: if you have questions concerning the collection, processing or use of you personalized data, general information, corrections, blocking or deletion of data, please contact us either via e-mail to info at edelmetalle-direkt.com or use different means to contact us.
This version of the Data Privacy Statement is according to the state of knowledge of May 2018. We reserve the right to apply changes and additions should our online offer, the means of data collection or the processing of personalized data on our side or the legal practice change. Should your compliance as a person in question to those changes be needed in the sense of the GDPR, we shall only do it with your consent. You may inform yourself at any given time about the current version of our Data Privacy Statement. The corresponding link can be found in the footer region of our homepage when clicking on “Data privacy statement”. The site can be accessed from any subpage and may be printed out if required.

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Logan Ford, Dallas, Tex., for defendant-appellant.
Larry B. Bach, Forney, Tex., for Harold B. Schwartz.
Stanley M. Kaufman, Dallas, Tex., for plaintiffs-appellees.
Before WISDOM, THORNBERRY and RUBIN, Circuit Judges.
"Good will," the trite shop sign remarks, "is the disposition of a pleased customer to return to the place where he has been well treated."1 Even if courts had personal conceits, however, they would not need to encourage custom. This and other courts, without wishing to be ungracious, therefore, have developed the doctrine known as the law of the case: once a case has been decided on appeal, the rule adopted is to be applied, right or wrong, absent exceptional circumstances, in the disposition of the lawsuit.
While the "law of the case" doctrine is not an inexorable command, a decision of a legal issue or issues by an appellate court establishes "the law of the case" and must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court, unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice. (Footnotes omitted).
See White v. Murtha, supra; see also Woods Exploration & Producing Co., Inc. v. Aluminum Co. of America, 5 Cir. 1975, 509 F.2d 784, 787-788, cert. denied, 1975, 423 U.S. 833, 96 S.Ct. 59, 46 L.Ed.2d 52; Terrell v. Household Goods Carriers' Bureau, 5 Cir. 1974, 494 F.2d 16, 19-20, cert. dismissed, 1974, 419 U.S. 987, 95 S.Ct. 246, 42 L.Ed.2d 260; Hodgson v. Brookhaven General Hospital, 5 Cir. 1972, 470 F.2d 729, 730; Gulf Coast B. & S. Co. v. International Bro. of E.W., No. 480, 5 Cir. 1972, 460 F.2d 105, 107-08; Gorsalitz v. Olin Mathieson Chemical Corp., 5 Cir. 1972, 456 F.2d 180, 181, cert. denied, 1972, 407 U.S. 921, 92 S.Ct. 2463, 32 L.Ed.2d 807; Fontainebleau Hotel Corp. v. Crossman, 5 Cir. 1961, 286 F.2d 926, 928. None of the exceptions to its application are presented here.
In a prior opinion relating to this same controversy, Schwartz v. NMS Industries, Inc., 5 Cir. 1975, 517 F.2d 925, cert. denied, 1976, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643, we found that the defendant, NMS, which had issued 80,750 shares of its stock to the plaintiffs, had violated a contract between the parties by failing to cause these shares to be registered for sale, and was thus guilty of breach of contract and conversion under Texas law. Having determined that the plaintiffs could have sold even the restricted stock under certain conditions pursuant to Securities and Exchange Rule 144, we concluded that plaintiffs "had a duty to mitigate their damages by selling the maximum amount of stock allowable under Rule 144 . . . (and that) their recovery should be reduced by the market value of the amount of stock they could have sold pursuant to Rule 144." 517 F.2d at 931. This appeal challenges the trial court's response to the remand for determination of the amount that plaintiffs' award ought to be reduced as a result of their failure to mitigate damages.
On remand the trial court reasoned that, because the plaintiffs had 40,375 unrestricted shares that were always eligible for sale, the defendant's action had deprived the plaintiffs only of the opportunity to sell the other fifty percent of their stock; the plaintiffs always had the privilege of selling the unrestricted shares; hence, the potential return on the sale of the restricted shares ought not mitigate damages. Alternatively, the court found that it would be unreasonable to extend the duty of sale beyond May 1, 1972, the date on which plaintiffs could begin selling the restricted shares under Rule 144, on the theory that a person "cannot be required to mitigate his damages beyond the last date on which they are measured."
Although both theories appear to be contrary to Texas law,2 for present purposes, it matters only that they are contrary to the law of the case. In our prior opinion, we expressly determined that plaintiffs' "recovery should be reduced by the market value of stock they could have sold pursuant to Rule 144." 517 F.2d at 931. While we respect the diligence and effort the experienced and able trial judge brought to consideration of the meaning of the mandate, the trial court's only task was to determine the market value of the amount of stock that could have been sold pursuant to Rule 144 and subtract it from the judgment of $83,778.17 plus interest. The siren theory sung so sweetly by advocacy should not have wooed him from this course.
According to the trial court's findings, the plaintiffs could have sold all the restricted stock under Rule 144. While there were S.E.C. limitations on the sale of all of the restricted stock at one time, it could have been sold conformably to the regulations in installments. Thus, all of the restricted stock could have been sold by June 13, 1973, slightly more than one year after the date of the conversion. Our prior opinion did not place any time limit on the duty to mitigate but required that recovery be reduced by the value of all the stock that could have been sold. Traditionally, the duty persists as long as damages are suffered and may reasonably be mitigated. See, e. g., Golf City v. Wilson Sporting Goods Co., Inc., 5 Cir. 1977, 555 F.2d 426, 436; Thompson v. Quarles, Tex.App.1956,297 S.W.2d 321; International-Great Northern Ry. Co. v. Reagan, Tex.App.1931, 36 S.W.2d 564, aff'd, Tex.1932, 49 S.W.2d 414. Here, plaintiffs were deprived of the right to sell until August 19, 1974, and, accordingly, were under a duty to mitigate until then. Because plaintiffs could have sold all the restricted stock prior to the date of judgment, we need not consider the duty, if any, to mitigate after an award has been entered.
In an appendix to its opinion, the trial court set forth the defendant's calculations that plaintiffs would have received $57,106.25 for the stock had it been sold under the Rule. There does not appear to be a dispute as to these calculations, and, unless the trial court concludes on remand that they are mathematically incorrect, it shall reduce plaintiffs' award by that amount.
In actions for conversion, once a defendant satisfies a judgment based upon the value of the converted item, title passes to the defendant. Alexander Schroeder Lumber Co. v. Minerales y Metales, S.I.T.C., 5 Cir. 1964,331 F.2d 135, 138; Southwestern Peanut Growers Assoc. v. Womack, Tex.App.1944, 179 S.W.2d 371. However, such a result would clearly be inequitable here because the judgment is now based on the temporary loss of the right to sell the stock and not merely on the value of the stock itself. Unlike a traditional conversion action where the tortfeasor has unqualified custody of the goods, the doctrine of conversion was utilized here only as a theory of damages for a breach of contract that temporarily deprived plaintiffs of the right to sell their stock. But, after promulgation of Rule 144, plaintiffs were not fully denied the right to sell the stock; their actual loss was merely the difference between the price they would have received if not for the restrictions and the price they could receive under Rule 144 despite the restrictions, or, based on defendant's calculations, $26,671. That loss is properly measured by the calculations we remanded for. Allowing title to pass upon satisfaction of this amount would, as the consequence of defendant's tort, allow them to purchase with approximately $26,000 (according to defendant's calculations) stock worth approximately $83,000 at the time of their tort and $57,000 under later market prices. We will not permit the fiction that defendant was guilty of "conversion" to become a judicially sanctioned actuality.
Accordingly, title to the stock will remain with plaintiffs after satisfaction of judgment. REVERSED and REMANDED for entry of judgment as directed in this opinion.

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APRIL 2, 2018; 2:00 P.M. U.S. BANK NATIONAL ASSOCIATION V. MARGARITA BETANCOURT, ET AL.; BRONX COUNTY INDEX NO.: 380978/12; PREMISES: 1420 EDWARDS AVENUE, BRONX, NY 10461; FORECLOSURE SALE LOCATION: THE BRONX COUNTY COURTHOUSE, ROOM 600, 851 GRAND CONCOURSE, BRONX, NY.
APRIL 6, 2018; 10:00 A.M.: ASPEN SHACKLETON III LLC V. MELBOURNE A. BLACK AKA MELBOURNE, ET AL.; QUEEN COUNTY INDEX NO.: 707578/2016; PREMISES: 153-23 119TH AVENUE, JAMAICA, NY 11434; FORECLOSURE SALE LOCATION: AT THE QUEENS COUNTY COURTHOUSE IN COURTROOM #25, 88-11 SUTPHIN BOULEVARD, JAMAICA, NY.
APRIL 6, 2018; 10:00 A.M.; DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST 2004-2 V. ALEXANDER RUIZ A.K.A ALEX RUIZ, ET AL.; QUEEN COUNTY COURT INDEX NO.: 9096/12; PREMISES: 92-06 93RD AVENUE, WOODHAVEN, NY 11421; FORECLOSURE SALE LOCATION: QUEENS COUNTY COURTHOUSE, 88-11 SUTPHIN BOULEVARD, JAMAICA. NY.
APRIL 10, 2018; 10:00 A.M.: CARRINGTON MORTGAGE SERVICES, LLC V. JOSEPH SLIWKA A/K/A JOSEPH JOHN SILWKA, ET AL.; CAYUGA SUPREME COURT INDEX NO.: 2016-00000724; PREMISES: 21 FLORENCE STREET, AUBURN, NY 13021; FORECLOSURE SALE LOCATION: AT THE CAYUGA COUNTY COURTHOUSE, AUBURN, NY 13021.
APRIL 10, 2018; 11:30 A.M.: WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR WINSTED FUNDING FINANCE TRUST 2016-6 V. KONSTNTINO THOMAS, ET AL.; NASSAU COUNTY COURT INDEX NO.: 9730/2014; PREMISES: 55 BARBARA DRIVE, EAST MEADOW, NY 11554; FORECLOSURE SALE LOCATION: AT THE (CCP) CALENDAR CONTROL PART COURTROOM IN THE NASSAU COUNTY SUPREME COURT, 100 SUPREME COURT DRIVE, MINEOLA, NY.
APRIL 10, 2018; 11:30 A.M.; DEUTSCHE BANK NATIONAL TRUST COMPANY, AS INDENTURE TRUSTEE, FOR NEW CENTURY HOME EQUITY LOAN TRUST 2005-2 V. PETER LEWIS, ET AL.; NASSAU COUNTY COURT INDEX NO.: 3414/2013; PREMISES: 767 MARTIN DRIVE, UNIONDALE, NY 11553; FORECLOSURE SALE LOCATION: AT THE CALENDAR CONTROL PART (CCP) COURTROOM OF THE SUPREME COURT, 100 SUPREME COURT DRIVE, MINEOLA, NY 11501.
APRIL 10, 2018; 2:30 P.M.: CITIZENS BANK, N.A. V. JOHN PATIERNO, ANDREJA PATIERNO A/K/A ANDREJA G. PATIERNO, ET AL.; DUTCHESS COUNTY COURT INDEX NO.: 2015-51704; PREMISES: 8 VANESSA LANE, STAATSBURG A/K/A HYDE PARK, NY 12580; FORECLOSURE SALE LOCATION: AT DUTCHESS COUNTY COURTHOUSE, 10 MARKET STREET, POUGHKEEPSIE, NY, REAR LOBBY.
APRIL 12, 2018; 10:00 A.M.: WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, AS TRUSTEE FOR NORMANDY MORTGAGE LOAN TRUST, SERIES 2015-1 V. ANARGYROS K. DIKAS, ET AL.; SCHENECTADY COUNTY INDEX NO.: 2015-893; PREMISES: 2810 CONSAUL ROAD, SCHENECTADY, NY 12304; FORECLOSURE SALE LOCATION: THE FRONT STEPS PF SCHENECTADY COUNTY COURTHOUSE, 612 STATE STREET, SCHENECTADY, NY.
APRIL 17, 2018; 11:00 A.M.; BAYVIEW LOAN SERVICING, LLC V. MONA DAVID, ET AL.; NASSAU COUNTY INDEX NO.: 001012/2015; PREMISES: 44 CRYSTAL STREET, ELMONT, NY 11003; FORECLOSURE SALE LOCATION: AT THE CALENDAR CONTROL PART (CCP) COURTROOM OF THE NASSAU COUNTY SUPREME COURT, 100 SUPREME COURT DRIVE, MINEOLA, NY 11501.
APRIL 17, 2018: 11:00: COMMUNITY RESTORATION CORPORATION V. DAVID PORRATA A/K/A DAVID PORRATA, JR. ; MONROE COUNTY COURT INDEX NO.: 2014-6975; PREMISES: 101 STERLING STREET, ROCHESTER, NY 14606; FORECLOSURE SALE LOCATION: FORECLOSURE ACTION AREA, 99 EXCHANGE BOULEVARD, ROCHESTER, NY.
April 20, 2018; 10:00 A.M.; U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE OF SW REMIC TRUST 2015-1 V. YADIRA JARQUIN, JAMIE MATUTE A/K/A JAIME MATUTE, PEDRO CARDONA A/K/A PEDRO A. CARDONA, ET AL.; QUEENS COUNTY INDEX NO.: 702913/2015; PREMISES: 9110 107TH STREET A/K/A 91-10 107TH STREET, RICHMOND HILL, NY 11418; FORECLOSURE SALE LOCATION: THE QUEENS COUNTY SUPREME COURT, 88-11 SUTPHIN BOULEVARD, JAMAICA, NY, COURT ROOM #25.
APRIL 25, 2018; 10:00 A.M.: CITIZENS BANK, N.A. F/K/A RBS CITIZENS, N.A. V. WENDY BARBEE LOWELL, INDIVIDUALLY WENDY BARBEE LOWELL, AS EXECUTRIX OF THE ESTATE OF WYLETTA Y. BARBEE A/K/A WYLETTA YVONNE BARBEE, ET AL.; ORANGE COUNTY COURT INDEX NO: EF005476-2016; PREMISES: 68 EISENHOWER DRIVE, MIDDLETOWN, NY 10940; FORECLOSURE SALE LOCATION: THE THIRD FLOOR LOBBY/FORECLOSURE SALES AREA OF THE ORANGE COUNTY COURTHOUSE, 285 MAIN STREET, GOSHEN, NY.

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The American Center for Law and Justice wishes everyone a happy holiday season. Undoubtedly, students in school districts all over the country are celebrating the holidays in a variety of creative and entertaining ways. We are aware that some of these celebrations may be hindered by questions of what is permitted or prohibited by the United States Constitution. Consequently, the purpose of this letter is to assist local school district officials in addressing what activities are permissible for schools to engage in, and to protect the rights of student participation in Christmas or other holiday observances in public schools.
Although holiday observances are constitutionally permissible, it is our concern that local school districts may feel pressured to censor religious expression during Christmas. This letter will attempt to provide answers to those questions which are most commonly asked regarding the rights of students and eachers to participate in these observances.
I. Are students allowed to sing Christmas carols with religious themes at school events or in holiday programs?
It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. Other court of appeals cases have confirmed the central holding of Florey. The United States Court of Appeals for the Fifth Circuit, in Doe v. Duncanville Independent School District, 70 F.3d 402 (5th Cir. 1995), upheld a school’s longtime use of “The Lord Bless You and Keep You” as its theme song. In its decision, the Court stated: A position of neutrality towards religion must allow choir directors to recognize the fact that most choral music is religious. Limiting the number of times a religious piece of music can be sung is tantamount to censorship and does not send students a message of neutrality. . . . Such animosity towards religion is not required or condoned by the Constitution. Id. at 408.
Similarly, in Bauchman v. West High School, 132 F.3d 542 (10th Cir. 1997), a student sued the school because of, among other things, the religious content of the songs performed by the school choir. The tenth Circuit dismissed the lawsuit, citing Doe and noting that “the Constitution does not require that the purpose of government-sanctioned activity be unrelated to religion.” Id. at 553. Furthermore, the court recognized that “a significant percentage of serious choral music is based on religious themes or text. Any choral curriculum designed to expose students to the full array of vocal music culture therefore can be expected to reflect a significant number of religious songs.” Id. at 554 (internal citations omitted). It is hardly surprising, then, that “the Constitution does not forbid all mention of religion in public schools.” Id.; see also Sease v. School Dist. of Philadelphia, 811 F. Supp. 183 (E.D. Pa. 1993) (noting that the Equal Access Act protects the ability of student-led and initiated choirs to sign religious songs and access school facilities on the same basis as other student groups).
II. Can schools teach about the biblical origins of holidays such as Christmas and Easter?
YES. In Stone v. Graham, 449 U.S. 39, 42 (1980), the Supreme Court stated, “the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.” Therefore, it would be constitutional for a public school teacher to have students study Biblical passages that relate to Christmas (e.g., Matthew 1:18-2:22, Luke 2:1-20) if the purpose was to study the historical or literary significance of the passages. In considering the type of activities that are appropriate in public schools, the federal appeals court in Florey stated, “[w]e view the term ‘study’ to include more than mere classroom instruction; public performance may be a legitimate part of secular study.” Florey, 619 F.2d at 1316. The Florey court went on to quote the lower court with approval, stating “[t]o allow students only to study and not to perform [religious art, literature and music when] such works . . . have developed an independent secular and artistic significance would give students a truncated view of our culture.” Id. (alteration in original). Of course, any student that has ideological or religious objections to participating in a particular performance should be excused from the assignment. The United States Department of Education has issued guidelines for the nation’s school leaders which address the extent that religious expression and teaching are allowed in public schools.
The guidelines state that: [p]ublic schools may not provide religious instruction, but they may teach about religion, including the Bible or other scripture: the history of religion, comparative religion, the Bible (or other scripture)-as-literature, and the role of religion in the history of the United States and other countries are all permissible public school subjects. Similarly, it is permissible to consider religious influences on art, music, literature, and social studies. . . . U.S. Dep’t of Education, Religious Expression in Public Schools, available at http://www.ed.gov/PDFDocs/faith-good-ideas.pdf 61-62 (last visited Nov. 26, 2007). The guidelines further state that “public schools may teach about religious holidays, including their religious aspects, and may celebrate the secular aspects of the holidays.” Id. In addition, “[t]eachers and administrators are prohibited from discouraging activity because of its religious content, and from soliciting or encouraging anti-religious activity.” Id. These guidelines reaffirm that students and teachers may celebrate the Christmas holiday without fear of running afoul of the Establishment Clause.
In , 449 U.S. 39, 42 (1980), the Supreme Court stated, “the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.” Therefore, it would be constitutional for a public school teacher to have students study Biblical passages that relate to Christmas (, Matthew 1:18-2:22, Luke 2:1-20) if the purpose was to study the historical or literary significance of the passages. In considering the type of activities that are appropriate in public schools, the federal appeals court in stated, “[w]e view the term ‘study’ to include more than mere classroom instruction; public performance may be a legitimate part of secular study.” , 619 F.2d at 1316. Thecourt went on to quote the lower court with approval, stating “[t]o allow students only to study and not to perform [religious art, literature and music when] such works . . . have developed an independent secular and artistic significance would give students a truncated view of our culture.” (alteration in original). Of course, any student that has ideological or religious objections to participating in a particular performance should be excused from the assignment. The United States Department of Education has issued guidelines for the nation’s school leaders which address the extent that religious expression and teaching are allowed in public schools. The guidelines state that: [p]ublic schools may not provide religious instruction, but they may teach religion, including the Bible or other scripture: the history of religion, comparative religion, the Bible (or other scripture)-as-literature, and the role of religion in the history of the United States and other countries are all permissible public school subjects. Similarly, it is permissible to consider religious influences on art, music, literature, and social studies. . . . U.S. Dep’t of Education, , 61-62 (last visited Nov. 26, 2007). The guidelines further state that “public schools may teach about religious holidays, including their religious aspects, and may celebrate the secular aspects of the holidays.” In addition, “[t]eachers and administrators are prohibited from discouraging activity because of its religious content, and from soliciting or encouraging anti-religious activity.” These guidelines reaffirm that students and teachers may celebrate the Christmas holiday without fear of running afoul of the Establishment Clause.
The case of Sechler v. State College Area School District, 121 F. Supp. 2d 439 (M.D. Pa. 2000), applied the principles set forth in Stone and the Department of Education guidelines. In Sechler, the district court upheld a school’s holiday display and song program which included various references to Christmas, Chanukah, and Kwanza. In finding no “excessive entanglement” with religion, the court noted that no clergy were involved in the planning or administration of the program, and the School District was not involved in any doctrinal questions. Id. at 449. In fact, the opposite was true; the program and display “sen[t] a message of inclusion and celebrate[d] freedom to choose one’s own beliefs.” Id. at 453. Consequently, the program and display did “not offend the Establishment Clause, either as favoring one religion over others or as favoring religion over non-religion.” Id. The court noted that public school officials have some latitude in designing permissible holiday programs.
III. May schools display religious symbols during Christmas?
Christmas and Chanukah are celebrated as cultural and national holidays as well as religious ones, and there is simply no constitutional doctrine which would forbid school children from sharing in that celebration, provided that these celebrations do not constitute an unconstitutional endorsement of religion and are consistent with a school’s secular educational mission. Id. at 939. The court then recognized that religion is an appropriate subject of secular study and found it “hard to imagine how such study can be undertaken without exposing students to the religious doctrines and symbols of others.” Id.; see also Skoros v. City of New York, 2004 U.S. Dist. LEXIS 2234 (E.D.N.Y. 2004) (upholding a public school policy which encouraged schools to display “secular” holiday symbols such as Christmas trees, Menorahs, and the Star and Crescent and discouraged the display of more religious symbols such as nativity scenes or excerpts from the Bible, Torah, or Qur’an), aff’d 437 F.3d 1, 4 (2d Cir. 2006) (upholding the policy and refusing to decide whether the addition of a creche would violate the Establishment Clause); Sechler, 121 F. Supp. 2d 439 (upholding a school’s holiday program which included various references to Christmas, Chanukah, and Kwanza).
IV. Are students permitted to write about the origin of Christmas and the birth of Jesus or other religious sentiments in school assignments?
Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools, 68 Fed. Reg. 9645 (2003). Thus, for example, if a student is instructed to write an essay discussing what his favorite holiday is and why, he should be able to write an essay explaining that his favorite holiday is Christmas because it represents the birth of Jesus. The essay should be judged by normal academic standards of literary quality and grammar without regard to the essay’s religious content.
, 68 Fed. Reg. 9645 (2003). Thus, for example, if a student is instructed to write an essay discussing what his favorite holiday is and why, he should be able to write an essay explaining that his favorite holiday is Christmas because it represents the birth of Jesus. The essay should be judged by normal academic standards of literary quality and grammar without regard to the essay’s religious content.
V. May schools continue to refer to winter and spring breaks as “Christmas” and “Easter” holidays?
YES. School districts are under no constitutional obligation to rename the Christmas and Easter holidays. The Supreme Court itself has acknowledged with approval that Congress gives federal employees a paid holiday on December 25 and calls that holiday “Christmas.” See Lynch v. Donnelly, 465 U.S. 668, 675, 680 (1984); see also Ganulin v. United States, 71 F. Supp. 2d 824 (S.D. Ohio 1999), aff’d, 238 F.3d 420 (6th Cir. 2000) (upholding the federal law making Christmas a legal holiday).
School districts are under no constitutional obligation to rename the Christmas and Easter holidays. The Supreme Court itself has acknowledged with approval that Congress gives federal employees a paid holiday on December 25 and calls that holiday “Christmas.” 465 U.S. 668, 675, 680 (1984); , 71 F. Supp. 2d 824 (S.D. Ohio 1999), , 238 F.3d 420 (6th Cir. 2000) (upholding the federal law making Christmas a legal holiday).
In the last decade, several constitutional challenges have been mounted to federal and state laws which designate Christmas and Easter as official holidays. These challenges have been mostly rejected. See generally Koenick v. Felton, 190 F.3d 259 (4th Cir. 1999) (upholding a Maryland law recognizing Good Friday as a public school holiday); Granzeier v. Middleton, 173 F.3d 568 (6th Cir. 1999) (upholding a practice of some Kentucky state court offices to close on Good Friday); Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991) (upholding a Hawaii law recognizing Good Friday as a public holiday).
For instance, in Bridenbaugh v. O’Bannon, 185 F.3d 796 (7th Cir. 1999), the Seventh Circuit held that Indiana’s recognition of Good Friday as a legal holiday did not violate the Establishment Clause. In reaching this important result, the court noted that: the Establishment Clause does not prohibit Indiana from choosing Good Friday as the day for a legal holiday merely because that day coincides with what, to some, is a religious day. No court has ever held that the Establishment Clause is violated merely because a state holiday has the indirect effect of making it easier for people to practice their faith. Id. at 801-02. The Seventh Circuit added that people are free to celebrate Good Friday as they choose. Bridenbaugh’s analysis supersedes earlier decisions in the Seventh Circuit to the contrary. See Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995) (holding unconstitutional an Illinois law recognizing Good Friday as a holiday and stating that Illinois could enact a constitutional law in the future); Freedom from Religion Found. v. Litscher, 920 F. Supp. 969 (W.D. Wisc. 1996) (applying Metzl in holding Wisconsin’s recognition of Good Friday unconstitutional).
We hope that this letter helps to clarify the legal issues surrounding the role of religious expression in the public schools. The American Center for Law and Justice is committed to defending the constitutional rights of students on their public school campuses. We are also committed to ensuring that the rights of citizens in your community are protected. Because of our commitment, we are available to answer questions you might have concerning this letter. Please feel free to share this information with your school’s board, attorney, principals, and staff.

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The marital relationship between a husband and wife and is a mutual bond of trust and understanding. Though marriage isn’t gleeful and jubilant in all the cases, in some cases marriage becomes a stumbling block to happiness and peace of mind. Matrimonial matters demand trust, regard, respect, love, affection and belief. Cruelty is one of the aspects that becomes a hamper against a happy marital relationship.
“Cruelty” is a word with much depth, and its definition may change according to different circumstances and situations. Cruelty, in general, is an inhuman treatment against any person. It may also include physical and mental sufferings. It cannot be assumed that cruelty can only be caused by violence or by giving mental trouble. Cruelty may differ from person to person and individual to individual, as observed in the case Sheldon vs. Sheldon, (1966 (2) All. ER 257). For each human cruelty is different. Someone may feel like a victim of cruelty when forced to do a work which they never wanted to do whereas in the same condition some other person may not feel the same.
Cruelty is not only against wife or women: it may be against male or husband, female, child, old-aged person, living animal etc. It is just that what kind of cruelty is recognized by the law. Cruelty in any marital relation may be of countless variety, it may be brutal or subtle. It may be done by the way of signs, gestures, words, unspoken signals or merely be silence. It may be caused by violence or non-violence. The character of parties, level of tolerance, and adjustment limit must also be taken into consideration. Cruelty will be established when the conduct itself is proved of admitted as held in the case Sobha Rani vs. Madhukar Reddi, (1988 (1) SCC 105).
Now the question arises that, what may amount to cruelty against husband? It is the duty of the court to take into consideration all the facts and circumstances of a case and also look at the physical and mental condition of the applicant as well as the victim to decide that the victim has been subject to cruelty or not. For a thing to fall under the category of cruelty under section 13 (1) (ia) of Hindu Marriage Act, it should create an apprehension in the mind of the other person that living with the other spouse may cause him/her mental or physical injury. Any willful unjustifiable conduct can be called cruelty which causes a problem for the other spouse. Cruelty also includes physical injuries and physical injuries can direct evidence whereas mental injury requires expert advice for corroboration. Mental cruelty is to be assessed bearing in mind the social status of the parties, their customs, traditions, their educational level, and the environment in which they live as stated in G.V.N. Kaneswara Rao vs. G. Jabilli (2002 (2) SCC 296).
In any state law is the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. It is sad to see when there is a law made for any particular section of the society for their protection and later that law is used unreasonably. The laws which were made for the protection of women against the crimes committed against them is now used as a tool by the women to intensify and satisfy their personal hatred against men and his family members. Women are not only given protection under the law but also given a priority by presuming their statement to be bona fide and genuine. There are few grounds which may be taken up and it may be presumed that the husband and his innocent family members were subject to cruelty by the women, by using the laws which are meant for her protection to satisfy her personal enmity against them.
Misuse of the laws provided against the demand of dowry, under section 498-A of IPC.
Desertion by wife and to bring cohabitation to a complete end. Desertion means withdrawing from all matrimonial obligations as in case Savitri Pandey vs. Prem Chandra Pandey (AIR 2002 SC 591).
Wife, choosing second marriage, even though the first one exists.
Wife threatening to commit suicide.
Abusing, insulting the husband and disrespecting on false grounds.
Lodging false FIRs and reports against husband and his family members.
Having extramarital affairs by the wife.
Accusing the husband to have extramarital affairs as observed in the case. Deepalakshmi Saehia Zingade v/s Sachi Rameshrao Zingade (AIR 2010 Bom 16).
Giving justification on the aforementioned grounds and making it obvious for the court to believe that the husband has been subjected to cruelty by wife, the husband can get the decree of divorce.
Yogricha Verma, a fourth-year law student at Amity Law School, Amity University Madhya Pradesh, is also a student of Company Secretary under ICSI. She is a student member of Indian National Bar Association (INBA) and Chartered Institute of Arbitrators (CIArb). Her native is Bhopal, India. She is also a freelancer and an artist and loves to do social works.
Is “irretrievable breakdown” of marriage is ground for dissolution of marriage by divorce, under Hindu Marriage Act, 1955? The answer to this question clearly is that no such express provision has been incorporated by the Parliament in Hindu Marriage Act, 1955 (HMA). Then why did the Delhi High Court by its Judgement dated 21st October 2016, in the case of Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)], agree to grant divorce on the ground of “irretrievable breakdown” of marriage?
Precisely a month before the above-mentioned judgement, the Delhi High Court in the judgment dated 21st September 2016, in case of Mini Appa Kanda Swami v. M. Indra [(2016) 234 DLT 243 (DB)], came up with decision that the High Court lacks the jurisdiction to grant divorce on the doctrine of “irretrievable breakdown”.
Why did the Delhi High Court reverse its stance on granting divorce on the basis of the “Doctrine of Irretrievable Breakdown”? Is it following the principles of stare decisis? Many more question arises after the Sandhya Kumari v. Manish Kumar case.
The rationale given by Delhi High Court, in the said judgment, was that, by virtue of Madhvi RameshDudani v. Ramesh K. Dudani [2006 (2) Mh.L.J. 307], Shrikumar V. Unnithan v. Manju K. Nair, [2007 (4) KHC 807], V. Bhagat v. D. Bhagat [(1994) 1 SCC 337], andNavinKohli v. NeeluKohli [(2006) 4 SCC 558], “the concept of cruelty has been blended by the courts with irretrievable breakdown of marriage.”Hence, directly or indirectly, Delhi High court has read doctrine of irretrievable breakdown under ‘cruelty’, which is a ground for granting divorce.
Now coming to Madhvi RameshDudanicase, divorce was granted on the ground of cruelty, and it was only an observation of the Bombay High Court that marriage has been irretrievably broken. There was no observation regarding the blending of the same.
Moving on to another case of V. Bhagat v. D. Bhagat, theApex Court has said that, HMA does not permit dissolution of marriage on doctrine of “irretrievable breakdown”, and cautioned to keep that in mind while ascertaining the type of cruelty contemplated by Section 13(1)(i-a).
The Apex court gave a clarification that “Irretrievable breakdown of the marriage is not a ground by itself … The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties.”Therefore, this case did not suggest any blending of cruelty with irretrievable breakdown of marriage.On the other hand, it granted divorce on that ground of mental cruelty.
It further indicated that, the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution cannot grant divorce despite the fact that the marriage has irretrievably broken down.
Another decision which was mentioned in Sandhya Kumari case, was NavinKohli v. NeeluKohli case. In which the Apex Court discussed major cases where, either the divorce was granted under Section 13B of HMA, stating “irretrievable breakdown” of marriage; or, under Article 142, when divorce was prayed under Section 13. Mostly, the alleged grounds for divorcee were adultery, desertion, or cruelty. Navin Kohli casewas alsosolved by granting divorce on ground of cruelty and not by invoking the doctrine of “irretrievable breakdown”.
Coming back to the Sandhya Kumaricase, in which the breakdown theory (Doctrine of “irretrievable breakdown”) and fault theory (mental cruelty) regarding divorce has been blended by the Delhi High Court, while foundation of thetwo, lies on two different kinds of bed rocks.
This judgement has violated the precedent laid down by Apex Court in the case of Vishnu Dutt Sharma v. Manju Sharma [(2009) 6 SCC 379], by indirectly reading “irretrievable breakdown” of marriage as ground for divorce. In Vishnu Dutt Sharma Case it washeld that Supreme Court cannot add “irretrievable breakdown” of marriage as ground for divorce under section 13, as that would amount to amending the act, which is thefunction of legislature.
Delhi High Court in Sandhya Kumari Casehas either, acted arbitrarily or, opened a new road of hope for people who would like to seek divorce easily, by reading “irretrievable breakdown” in cruelty. This decision can be appraised for judicial activism, as much as, it can becriticized, for not following the principle of Stare Decisis.
Dhruv Chandora is currently pursuing 4th year of BA LLB (Hons) course at Rajiv Gandhi National University of Law, Punjab. A voracious reader and a keen learner, Dhruv is also a moot court enthusiast.
Talaq is the repudiation or rejection of marriage under Muslim law. Talaq is a unilateral right given to man to divorce his wife. Husband can give talaq to wife at any point of time, without stating any cause, after attaining the age of puberty. It has been mentioned that a Muslim husband cannot give divorce during the iddat period (4month, 10days).
Under Islamic law, there are different ways of giving divorce. Dissolution of Muslim marriage can be done by either four of them or way.
“Talaq, talaq, talaq”, when pronounced by the husband, the marriage automatically ends at that particular moment. Triple talaq is practised by Muslims under their personal laws. When a husband pronounced “I divorce you” thrice to his wife, both of them are free from each other. It is the process where husband grants divorce to his wife. Talaq-e-biddat means sinful divorce where husband pronounces talaq thrice for the completion of the divorce process. The pronouncement of talaq thrice is known as Triple Talaq.
Being a sinful kind of a talaq, Hanafis (Sunnis) allow triple talaq system and makes it a valid one. Once talaq is pronounced thrice, divorce will take place and wife will become totally separated from husband in terms of responsibilities and relationship. Once talaq is done, the husband cannot marry her once again. She becomes prohibited (haram) for him. The provision of remarriage is also given in Muslim law. Husband can remarry her once if she marries another man and that person gives her divorce. Then only, the husband will be allowed to remarry her once again. Triple Talaq is a mental cruelty against the Muslim women as husband can give talaq at any point of time except the iddat period and also without stating any further reasons behind it.
Considering all these facts, a Muslim lady, Shayara Bano in May, 2016 approached to the Hon’ble Supreme Court to abolish triple talaq. It directly amounts to mental cruelty. Two-judge Bench of the Supreme Court held that there is a gender discrimination against Muslim women by practicing arbitrary divorce and triple talaq. Shayara Bano said that she only wished to secure a life with dignity, unmarred by discrimination on the basis of gender or religion as when she challenged her Muslim personal laws.
In August, 2016 the hon’ble Supreme Court held that the practices of triple talaq under Muslim personal laws illegal and unconstitutional.
A West Bengal based Muslim woman, Ishrat Jahan with other Muslim women and women’s rights organization filed a petition challenging the constitutionality of triple talaq and polygamy under the Muslim personal law. Supreme Court in its Suo moto action, considered the PIL to consider whether certain practices of marriage and divorce under Islamic personal laws amounts to gender discrimination. Ishrat Jahan filed the petition against her husband Murtaza Ansari challenging the validity of triple talaq. The court issued a notice to the husband. It contended that triple talaq is void and also violative of fundamental rights.
The case was further taken and the respondent contended from their side that personal can’t be amended as it is governed by Article 25 and 26 of the Constitution of India. If personal laws will not prevail, then there will a uniform civil code which is again violative of personal and customary laws. All India Muslim Personal Law Board (AIMPLB) told to the Supreme Court that personal laws of a community cannot be re-written. Triple talaq reduces those chances of killing wives. It was also contended that triple talaq is a legislative matter and cannot be interfered with. The practice of triple talaq and polygamy were based on Holy Scripture Al-Quran and courts cannot supplant its own interpretations over the text of scriptures.
On 5th September 2016, Supreme court granted centre four weeks to respond on triple talaq issue as the court feels that it is violative of Article 14(equality), Article 15( non-discrimination) , Article 21(life) and Article 25(religion) of the constitution of India.
Talaq means the dissolution of marriage under Muslim law. But every divorce should be the consensus of mind of the both the parties. Husband and wife should agree and then the divorce process should be initiated. Triple talaq is a concept in Muslim personal law which is followed by Sunnis. Under this, the husband has the power to give divorce to his wife irrespective of any reason. Cases are running in the hon’ble Supreme Court of quashing the validity of triple talaq as it violates fundamental rights f a woman. Women are not a piece of a toy that can be thrown away directly for the course of marriage. Hence, triple talaq should be held unconstitutional and void.
Sakshi Jain is currently pursuing her BLS LLB from Government Law College, Mumbai. Although she’s keen to gain knowledge and explore things going around her, her priority always stays focused on law only. Although she yearns for a career in the corporate sector, she’s quite confident regarding her capability to endure in other fields also. A passionate law student and a natural reader, she wants to complete her master degree from Harvard, Oxford, or London University.
Discerning the meaning of the term benefit of the estate as grounds for alienation of the property by Karta while looking at a myriad of cases stretching over a century and half. With the attempt being to assess whether a cogent, all-encompassing definition concerning for benefit of the estate can be achieved or not.
The evolution of Hindu law concerning the Hindu family institution is an ardently unique position, to understand and appreciate which, its pivotal to understand the functioning of the Hindu joint family system. To begin with, one must first explore the gamut of coparcenary relationships and the manner in which the devolution of property takes place ( Thus focusing on the previously established position of law under Mitakshara School).
A standard Hindu Joint family comprises of one common ancestor and all his lineal male descendants up to any generation along with the wives/widows and any unmarried daughters of the common ancestor. However the conception of rights of individuals finds its basis in the concept of coparcenary. A much a narrower concept, it provides for rights in ancestral property o both male and female members of the family, subsequent to them fulfilling certain conditions.
While the presence of the aspect of individual right is rife, in matters of legal and religious importance the cohesive structure of the family comes to the fore to take decisions on such aspects. Chief amongst them is the position holder of the Karta. The de facto head of the family, the Karta holds myriad of portfolio’s in regard to his responsibilities and powers pertaining to the responsibility of managing the family and their property.
The standard conception entails the senior most member of the family being anointed with the position of the Karta, provided he doesn’t suffer from any mental physical ailments. Additionally, while the senior most member is on principle deemed as the Karta, there can be multiple scenarios where other family members can act in the position of the Karta, provided the requisite provisos are completed.
However it is nigh impossible to juxtapose or categorize the position of the Karta with that of a manager of property or to establish a mere principal-agent relationship between the Karta and the family members. In addition to these, neither can the position of the Karta be understood as one of the trustees of the family property, thus by extension the Karta does not have an inherent responsibility of having accountability to the rest of the family members. That responsibility emerging only upon being questioned so or when there is an element of fraud in regard to the family’s holdings.
The Karta thus posits oneself as the supreme head of the family while simultaneously serving as the custodian of family property, to be utilized in the interests of the family members. The attempt in discerning the position of the Karta was to have brief idea about the almost omnipotent/ autocratic position that the Karta occupies. Furthermore contending with the subject matter of the paper i.e. the Karta’s power of alienation ( with specific focus on alienation carried out for the purpose of benefit of estate and the meaning behind the same).
The term alienation in the context of the discussion regarding the Hindu Family entails the transference of Joint family property for value , thus by extension binding the interest of both the adult and minor coparceners provided it is done in the presence of certain condition. Now before one engages with the aforementioned conditions, some of the entities who can carry out alienation are follows: The Karta, Father, Any Coparcener, Sole surviving coparcener and manager of the property.
For the purposes of this paper our focus will be on the Karta’s power of alienation. Now the powers of alienation as conferred to the above mentioned act on the fulfillment of certain conditions. While the standard position as such entailed that no single coparcener could alienate the property, the Dharmashastra in certain circumstances allowed for one coparcener to alienate the property.
Furthermore the Vijayneshwara school laid down a trifocal basis for alienation of property by the karta. They are the following, Apatkale, it entails the alienation of the Joint Family property in extremely exigent circumstances such as famine, epidemic. However that as a basis has been extended upon in the modern iteration of law. The second criterion being Kutumbarthe which entails alienation carried out for the sake of the family property. The last aspect contending with indispensible duties such as charitable, pious purposes. The Vijayneshwara in regard to this specific aspect mentions one example which is the Dharmarthe i.e. the obsequies of the father such shradha, upanayana amongst others.
The definitive case which first dealt with the issue of Benefit of estate as basis for alienation of property (apart from legal necessity) was the case of Hanooman Persuad v. Mussumat Babooee. The court in this specific dispute was in a conflict of opinion regarding the exact meaning of them “benefit of the estate”.
One view being that a transaction cannot being deemed as being for the benefit of the estate unless and until it doesn’t possess a defensive character i.e. a transaction carried out to protect the estate from an eminent danger or destruction. While the other view asserted that to classify the alienation under the guise of benefit of estate it is sufficient that owner or a trustee would have carried out the with the knowledge that was available to them at the time of the transaction.
The next case which added another definitive basis to term was the one of Palaniappa v. Deivasikamony AIR 1917 PC 33. The case dealt with the question of whether a mahant i.e. the head of math possessed the power to alienate a debutter land. The Judicial committee in this case very appropriately summed the problem with defining the term benefit to the estate. For basic aspect such as preservation of the estate from extinction, defense against hostile litigation affecting it, protection of certain portion from inundation or injury could very well be construed benefits. However the problem lay with drawing a clear demarcation as to what constituted benefits and what did not.
In the subsequent years between the above mentioned judgments, an interesting judgment as given by a full bench of the Bombay High Court in the matter of Hemraj v. Nathanstated that while a property cannot be alienated solely for the purpose of enhancing its value. It would however be an equally incorrect assumption to state that no transaction can be of the be of the benefit of the estate which is not of a defensive a character.
In addendum to this came the 1964 Supreme Court in the matter of Balmukund v. Kamlavati & Ors. The matter was instituted by an individual who had bought a piece of land from the manager of the property (one of the four brothers owning the Joint family property), only for the manager to not go through with the transaction after contractually agreeing for the same. The Supreme Court in the matter averred that a transaction to be regarded as carried for the benefit of the family need not necessarily be of a defensive character. Instead the criterion should be imposed on the basis whether the said transaction conferred or sought to confer benefit to the family.
It was further stated that in a scenario where all the adult members alongside the manager agree on selling the estate with an intent to get a new property would be deemed as being benefit to the estate. Provided all concerned member are well aware of the needs and demands of the family. Thus setting aside the position of the Hemraj case. This position has also found reflection in the later year cases of Hari Singh & Anr. v. Umrao Singh & Anr. AIR 1979 All 65 , wherein a land not yielding profit was sold only to be used as basis for land yielding profit, this was deemed as being benefit to the estate.
Simultaneously there have been judgments which state that a transaction cannot be deemed as being benefit to the estate if it simply carried for the purpose of buying another piece of land.
In recent cases before the Bombay and Madras High Court respectively ,the Court while examining the matter has often pondered the exception as laid out in the Balmukund case contending with the issue of sale of a property to buy another a property. Thus this question serves as the prime basis of contention ( on evidence adduced from the recent years) regarding the definition of the term Karta.
The Court on multiple instances has averred that owing to the inherent subjective nature of this aspect, that the aspect of the term benefit of the estate would be assessed on a case to case basis. However a requisite change that needs to be made in this regard is changing the nomenclature of the term benefit of the estate to the act of good management as stated by J. M. Kumar in the case Jagdish Parshad vs Laxmi Narain And Anr (2003) 135 PLR 481. For an understanding such as that would greatly end the disputation surrounding this subject matter. More specifically if the changing the nomenclature is difficult , then effective/good management should certainly be set in as a qualifier for understanding the concept of alienation of property by Karta. For an attempt such as this if not unify would certainly simplify the various positions that court across the country have taken in regard to alienation under the aegis of benefit of estate.
 While the Bombay and Madras schools allow for the share of the consenting coparceners to be bound for alienation, the same is not true as per the West Bengal and the Uttar Pradesh schools.
Dhruv Shekhar is at present a law student at Jindal Global Law School (JGLS), having studied History before at St. Stephens College. Intrinsically passionate about the Films, Books and Football, he seeks to examine and study his interests within the ambit of the legalities concerned with the said subject matter.

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UNITED STATES FOOD AND DRUG ADMINISTRATION, et al., Defendants.
On July 8, 2016, the plaintiffs filed this declaratory judgment action against the United States Food and Drug Administration (“FDA”), Robert Califf and Sylvia Burwell (“collectively the government defendants”) challenging the defendants' implementation of a final rule related to e-cigarette devices and e-liquids. The plaintiffs distribute e-cigarette devices and e-liquids, and challenge the FDA's “Deeming Rule” which places these products under the FDA's authority to regulate pursuant to the Tobacco Control Act, 21 U.S.C. § 387a(b). According to the plaintiffs, the defendants' Deeming Rule will subject their products to “the premarket approval, reporting, recordkeeping, inspection, labeling, manufacturing, testing and other requirements” of tobacco products, and will “severely and unnecessarily burden” their businesses. (Doc. # 1 at 7, ¶ 30-31). The plaintiffs ask the court to declare the Deeming Rule “an arbitrary and capricious regulatory system” and vacate the rule. (Id. at 16.) The court has jurisdiction of this action pursuant to the Administrative Procedures Act, 5 U.S.C. § 500 et seq., the Administrative Procedure Act Regulatory Flexibility Act, 5 U.S.C. § 601 et seq., the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, and the court's federal question jurisdiction, 28 U.S.C. § 1331.
On December 13, 2016, the parties filed a joint motion for entry of a briefing schedule asserting that because this case is governed by the Administrative Procedures Act, “it will be resolved on the basis of the administrative record complied by the agency.” (Doc. # 15 at 1, ¶ 2. On December 19, 2016, the court granted the parties' motion and entered a scheduling order setting forth deadlines for filing dispositive motions, cross motions and responses. (Doc. # 20). On February 1, 2017, the plaintiffs filed a motion for summary judgment. (Doc. # 21). On February 10, 2017, the Campaign for Tobacco-Free Kids filed a motion for leave to file an amicus brief (doc. # 25) which the court granted (doc. # 28).
On March 1, 2017, the defendants filed a consent motion for an extension of time to respond to the plaintiffs' motion for summary judgment (doc. # 29) which the court granted. (Doc. # 30). On May 1, 2017, the parties filed another joint motion to amend the scheduling order (doc. # 31) which the court also granted. (Doc. # 32).
On July 24, 2017, the American Academy of Pediatrics, the American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, the Campaign for Tobacco-Free Kids, and the Truth Initiative (collectively “the Public Health Intervenors”) filed a motion to intervene pursuant to Fed.R.Civ.P. 24. (Doc. # 33). The Public Health Intervenors seek to intervene as a matter of right under Fed.R.Civ.P. 24(a)(2) or alteratively, permissibly under Fed.R.Civ.P. 24(b)(1). The plaintiffs oppose the motion to intervene (doc. # 67) arguing that the motion is premature and untimely. The plaintiffs also argue that the Public Health Intervenors have not demonstrated that the government defendants would not adequately defend their rights. The government defendants have filed a response in which they reserve the right to oppose intervention but suggest that the motion to intervene is premature. (Doc. # 65).
Also pending before the court is the parties' joint motion to stay the case and vacate the briefing schedule (doc. # 54) pending the outcome of the appeal of Nicopure Labs LLC v. FDA, 266 F.Supp.3d 360 (D.C. 2017) appeal docketed No. 17-5196 (D.C. Cir. Aug. 31, 2017) which addresses the very issues raised in this case.
Pursuant to 28 U.S.C. § 636, this case is referred to the undersigned for consideration and disposition or recommendation of all pretrial matters. (Doc. # 19). The court heard oral argument on the motion to intervene on August 10, 2017. After careful consideration of the motion to intervene, and the briefs filed in support of and in opposition to the motion, the court concludes the motion to intervene (doc. # 33) is due to be granted. The court further concludes that the joint motion to stay the case (doc. # 54) is due to be granted and the motion to vacate the briefing schedule is due to be denied as moot.
The crux of this litigation involves the “Deeming Rule” created by the FDA which determined that e-cigarettes, e-liquids, and other related products were deemed tobacco products and subject to FDA regulation. According to the Public Health Intervenors the “Deeming Rule” is necessary to permit the FDA to regulate flavored e-cigarettes and products as well as marketing strategies aimed at young people. The Public Health Intervenors assert that “[s]etting aside the Deeming Rule, as Plaintiffs request, would have a direct adverse effect on public health, particularly among youth.” (Doc.# 33 at 7). In opposition to the motion to intervene, the plaintiffs assert that intervention by the Public Health Intervenors at this juncture would “unnecessarily encumber the litigation of the issues raised in this lawsuit.” (Doc. # 67 at 6). The court disagrees.