Here are a few tips to help prepare you for the Court Room experience:

First, I strongly recommend you try to settle as many issues as possible before entering the Court Room.  This means the judge won’t be in control of everything.
Do not expect the Judge will always make decisions in your favor. There are three directions the judge can go when making a decision: Your way, your spouse’s way, or the Judge’s way. As you can see, two out three are not in your favor.
Discuss how you should act, and when to speak with you attorney before going into the courtroom. Do not speak unless asked to do so by the Judge.
When addressing the Judge with respect by addressing him/her as “Your Honor.”
Never speak to or make comments to your spouse when you are before the Judge.
Leave all hostile and negative emotions at the door. Do not make faces or gestures when the judge or your spouse’s attorney is speaking. Judges see this and do not appreciate it.
Dress for success. Your attorney will have a certain strategy on how he/she wants you to be portrayed. Therefore, consult your attorney on how he/she wants you to dress.
Take notes. Don’t leave anything to chance. Your attorney will be very busy during the process and cannot remember or write everything down.
Be prepared and stay organized. Bring as much information, documentation and any pertinent documents that you possibly can with you. It is better to have too much ammunition than not enough.
Be prepared to be in the court house for some time. You will sometimes wait for hours before your case is called.

You can get more divorce tips and strategies at www.DivorceAmmo.com

Many Canadians and permanent residents may shy away from fighting their civil case in the Canada law courts but fortunately Canada offers a legal aid program for those citizens on low incomes. Legal aid is available for a range of legal services from residential tenancy matters and appeals to domestic violence, family disputes and refugee issues to name but a few. Anyone who wishes to take the legal aid route should visit one of the legal aid offices in their province to discover whether they qualify. You will need to take evidence of your finances and expenses in particular any documents relating to your income or benefit payments. You should also make sure that you have your utility bills, statements of your rent or mortgage payments and proof of any debt in the form of credit card statements and loan payments. Additionally, you should take some form of ID like your passport or SIN. If you own any property you must take the deeds with you.

It will take around three weeks to ascertain whether you qualify or not for legal aid and you cannot engage a lawyer under the legal aid scheme until you are approved. Once you are approved you will be given a Legal Aid certificate, which details how many free legal aid hours you may claim. You must present the certificate to any lawyer who takes legal aid cases – the choice is yours as to which lawyer you choose although it is wise to choose someone specializing in the law relating to your case.

In Ontario legal aid clinics provide advice and information to those qualifying for Legal Aid. The clinics are staffed by qualified lawyers and paralegals and offer the benefit of having close ties to many organizations that may be associated with a legal issue for example relationships with health care authorities.
For more free legal advice visit the Legal Canada community website or ask a question on the free legal advice forum.

Because of the importance of family relationships, it can be difficult when one has to work with a family law attorney and navigate the legal process.  Nevertheless, it is very important to know your options and legal rights.  An expert family law attorney can help you be aware of all possible strategies and decisions and help you to choose the path which is best for you, while making sure that the costs involved are reasonable.  You need not only to choose a lawyer who specializes in family law, but also someone whom you are comfortable with and whom you feel will provide you with the information you need to make informed decisions.  A good family lawyer will be available to answer any and all of your questions during what can be a tough time in your life.

There are many family law firms out there and with so much at stake, you need to feel good about your choice.  Many firms have lawyers with special expertise in the specific areas of family law.  A knowledgeable, experienced attorney can assist you as you try to make the choices which are right for you.  Do not forget to be sure to understand your legal rights under Illinois law as it relates to your family.  Take your time and find a Chicago family law firm you can believe in, who will lead you through the potential minefield which is family law.

When you are looking to reunite your family, you are looking for speed and a minimum of hassles. Yet, for better or worse, immigration based on a family relationship is a difficult and complex area of immigration law.

Here are answers to 4 of the most frequently asked family immigration questions:

Is there a cap on family based immigration?

It depends on the category of sponsorship. There are caps in certain areas and no limitation under other categories. Furthermore, if an applicant does not qualify as an immediate relative, they may apply under one of four categories. Experienced immigration attorneys are invaluable in family based immigration because they understand the shifting landscape of immigration law and can frequently speed-up the immigration process.

Is it better to process an application for my fiancee in the United States or in his/her country of residence?

While it is better to process an application in the U.S., be aware that as a general policy, the USCIS carefully scrutinizes the “spouse” family-sponsored preference category because of the opportunity for immigration fraud through forms of invalid and nonviable marriages.

If my loved one is currently living abroad, how soon can they come over to the U.S?

The critical question here is whether you entered the U.S. legally. If yes, an attorney can help you make decisions on the best approach for them to enter the U.S. If you are here, illegally, an attorney cannot help you with an entry visa but can discuss the latest regulations under amnesty or guest worker options.

I have older parents and I am becoming concerned about them. How can I take care of them?

The most straightforward way is to start with a visa process. Your parents can come to visit you for 6 months on a visitor visa as an example.

What is the value of U.S. citizenship versus remaining a permanent resident?

There are many advantages to U.S. citizenship and one of the benefits is that U.S. citizens can sponsor their parents (short wait) or brothers/sisters (very long wait) for immigration but permanent residents cannot. There is no waiting period for a U.S. Citizen to sponsor a spouse.

You probably have plenty of additional questions regarding family, spouse and fiance’ immigration and are not sure where to turn. Relax! You can download a more detailed and informative report on family immigration for free at Chicago Immigration Lawyer Family Immigration.

For a large list of other free immigration resources you can visit Immigration Lawyer Chicago.

This article, written by a Rhode Island family law lawyer explains in detail the following Rhode Island Child support Issues: Establishing, modifying, terminating, enforcing, contempt, college, daycare, overtime as well as an explanation of the RI support guidelines!!

Establishing Rhode Island Child Support:

How is Rhode Island  (RI) Child Support determined in divorce cases, paternity cases, and child visitation cases?

In most cases, it is set by the “Rhode Island  Family Court Child Support Formula and Guidelines”. In the vast majority of cases in Rhode Island,  the minimum Rhode Island child support guideline amount is used..

However,  a parent has the right to seek more then the minimum guidelines because the guidelines are supposed to be the minimum amount a parent will receive as child support. In Theory, The Guidelines are intended to be the floor rather then the ceiling for child support. In actuality, the minimum guidelines are used in the vast majority of Rhode Island  cases.

The court is entitled to look at the assets of a party in determining child support. The Family Court can also look at extraordinary expenses of either party and can look at the needs and expenses of the parties. The Court can look at any circumstances the judge believes appropriate. If a person is underemployed or refusing to work when capable of working then the court can determine the earning capacity of the party. Some Judges consistently go over the minimum guidelines.

The Rhode Island guidelines uses an income shares model in which the  adjusted gross income of both parents are used to determine the correct amount of child support. Essentially, the guidelines look at the combined adjusted Gross income of both parties. Adjusted gross income means the gross income of a party with certain required deductions from gross income for medical insurance & dental insurance.  Another required deduction is for additional minor dependants (children). There are also certain discretionary deductions that some judges may allow such as life insurance costs.

After determining the combined adjusted gross income of the parties, the Rhode Island Guidelines should be utilized to determine what the state of Rhode Island believes that two parents with that amount of adjusted gross income would pay for support if the parents were still residing together. After that number is determined daycare expenses are added onto that amount.

The non custodial parent pursuant to the minimum guidelines should be obligated to pay a percentage of that amount set forth above that is the same same percentage of that persons adjusted gross income to the total adjusted gross income of both parties.

For example: If Mom makes 00 a month and dad makes 00 a month and each has 0 dollars of medical insurance payments then the adjusted gross income of mom is 0 and the adjusted gross income of dad is 3800. The combined adjusted gross income of both is 00. Dad makes .6 percent of the combined adjusted gross income of the parties and is required to pay 82.6 percent of the  minimum guideline amount guideline amount plus the daycare expenses.

The next step is to get a copy of the most recent version of the Rhode Island Child Support Guidelines . This can be obtained at the Rhode Island Family Court.  It is perplexing that,  I cannot easily find the most recent guidelines on google .  You need to look at the “Rhode Island Monthly Basic support Obligations” (effective November 1, 2007) (These Guidelines recently replaced the 2002  Guidelines) Please note that one of the most significant changes to the new  2007 guidelines is the “self support reserve for payors with very limited income.

Assuming that the parties have two children the guidelines indicate that the correct support amount is 6. assuming there is no daycare* in this hypothetical then the father would be obligated to pay 82.6 percent or 6 per month which would be 9.65 per month or 3 per week. (Please note that these figures use the 2004 guidelines not the new 2007 child support guidelines)

*(if there is daycare then add the work related child care costs minus the federal tax credit. Please note that the state of Rhode Island uses a rule of thumb of approximately 75 percent to 80 percent of the actual daycare expense)

The Guidelines in theory and in most cases in actuality are the minimum amount a person is required to pay. The judge has discretion to go over the  minimum Rhode Island Guidelines if there is justification under the circumstances.

Some judges in Rhode island consistently go over the guidelines. The types of circumstances that may justify a judge issuing a child support order above the Rhode Island guidelines are:

a)  Substantial assets<br>
b)  standard of living and expenses that far exceed reported gross income<br>
c)   extraordinary necessary expenses and needs related for the child

If the parties agree to child support below the Rhode Island child Support Guidelines, in some limited circumstances, it may be allowed. These circumstances could include, visitation exceeding the norm, extraordinary payments of the child expenses or even sometimes just based on the parties agreement.

Private School:

In Rhode Island (RI) Divorce and Child support cases, Can I get the father or mother of my child to be ordered to pay for private school education?

No, unless there is a contractual obligation, a stipulated consent order or there is an ongoing divorce.

Most judges take the position that there are suitable public schools for children to attend. However, If there is something in writing such as a property settlement agreement obligating one parent to pay for the private school education of the child, then the parent may be obligated to pay for the private school education. 

Also, the parent could be ordered to pay for private school education in a divorce on a temporary basis, especially when it is in the middle of a school year and it would be disruptive for the child to transfer to a public school. Parents can certainly negotiate payment of private school education and the judge of The Family Court will usually approve the settlement in a court Order. That stipulated consent order could be enforced in a Family Court contempt proceeding.

College education:

Can I get the  father or mother of my child to be ordered to pay for college?

No, Unless there is a written contractual agreement obligating payment of college expenses. Rhode Island child support terminates when a child turns 18 and graduates high school but not longer then the child attaining the age of 19. (Unless the child is severely disabled and then it goes unil the child turns 21)

The Court loses jurisdiction over  the child when the child attains the age as set forth above. The Court cannot order payment of college but  a Court may enforce a written property settlement agreement between the parties obligating payment of college.

Overtime:

What if my child’s parent works overtime? Will overtime be included in child support?

There is no standard law or rule in Rhode Island regarding whether or not the non-possessory parent’s overtime will be used to calculate child support. One Judge in Rhode Island consistently rules that overtime compensation cannot be used to calculate child support.

Other Judges in Rhode Island have different opinions regarding overtime. The Family Court is a court of equity and fairness. Judges in Rhode Island will typically look at whether or not a person consistently works overtime over a substantial period of time. Judges may also look at whether or not overtime is consistently offered to a spouse. If overtime is infrequent or not typically offered Judges may be hesitant to calculate overtime as a factor of child support. In that case, many attorneys argue that a person’s income should be calculated using their W2 or gross income for the entire calendar year. By calculating gross income over an entire calendar year even infrequent overtime becomes an element of child support.

Judges may also look at other factors such as the needs and expenses of both parties and any extraordinary expenses for the child. At least one Judge has suggested that the possessory parent get a percentage of the overtime that is worked by the non-possessory parent. Other Judges in Rhode Island (RI) believe that overtime should always be a factor in child support. Often the issue of overtime is negotiated by the lawyers prior to any formal ruling by the Judge.

Daycare and Child Support

Who is going to pay for my child’s daycare?

The Rhode Island minimum guidelines take into account both the importance and expense of daycare. The guidelines and worksheet are used to determine the proper amount of child support to be paid by the non-possessory parent. The bottom line is that a party will be ordered to pay approximately the same percentage of the daycare that the party makes in relation to that party’s percentage of the combined gross income of both parties.

For example: If the husband makes 0,000.00 and the wife makes ,000.00 the combined gross income for the parties is 0,000.00. Therefore, the husband makes 66 percent of the income and will be ordered to pay 66 percent of the daycare in addition to child support. (There may be an adjustment to take into account the federal tax credit.) This amount is added onto the minimum Guidelines amount.

Modifying Rhode Island Support:

How is Child support modified in Rhode Island divorce and family law cases?

 Rhode Island Child Support is not automatically modified when there is a change in circumstances. The parent must file a motion to modify. When a motion for modification  is filed a court date will be set by the clerk of the Rhode Island Family Court. In order to modify child support there must be a substantial change in circumstances.  Under RI Law, a new child support amount does not run retroactive to when the circumstances actually changed! The new order should run retroactive to the date of the filing of the motion.

Therefore, you should not wait too long after circumstances change until you file for a modification of Rhode Island Child Support. There must be at least a ten percent change for a modification to occur unless the party agrees otherwise. You should contact a Rhode Island  Divorce or Family law lawyer / attorney to see whether you are eligible for a modification.

What  may constitute a substantial change in Circumstances pursuant to Rhode Island family law?

1. unemployment<br>
2. disability<br>
3. new dependant child<br>
4. decrease in income of either party<br>
5. increase in income of either party<br>
6. increase in cost of daycare<br>
7. increase in cost of medical insurance<br>
8. a change in the financial circumstances of the either parent such as inheritance, acquiring assets<br>
9. either party obtaining social security benefits (SSI or SSDI) or afdc benefits<br>
10. new RI Child Support Guidelines promulgated.<br>
11. loss of overtime income<br>
12 a substantial bonus of either party<br>
13 any other change in circumstances that is recognized by the Court.

Child support contempt in Rhode Island (RI)

If a person violates a Rhode Island Family Court order by not paying child support, the parent with physical custody may file a motion to hold that person in contempt for failure to pay. A person accused of not paying has a right to a hearing. The obligor parent has the right to proper notice under the Rhode Island Family Court Rules.

If the person owed child support (the parent with physical placement / custody) is on AFDC Benefits (welfare) than payment may be owed to the state of Rhode Island. In that event, the motion may be initiated by the State of Rhode Island, Child Support Enforcement rather than the father or mother with physical custody of the minor child.

A contempt proceeding could be part of a Rhode Island divorce, child custody, Complaint for separate Maintenance, dcyf petition, child visitation, paternity or other type of Family Court legal action. If there is a potential for incarceration and a person cannot afford a Rhode Island Family Law lawyer / attorney then the Family Court must insure that the person has an attorney representing him or her. The Judge usually has a list of Court Appointed attorneys who are paid for by the state. Otherwise, the Court will appoint one of the lawyers from Rhode Island Legal Services to represent the person.

There is often an opportunity to settle the matter prior to any hearing in which a judge may find a person in willful contempt. A settlement typically may include any one of the following or a combination of the following or something different: the obligor agreeing to remain current, paying a lump sum, a payment plan, staying current in addition to an arrearage order, etc.

In some situations, the parent with physical custody or Child Support enforcement is unwilling to settle the matter and insists on a hearing.

Technical contempt:

If a person is found in technical contempt after a hearing, it means that the person has not complied with the child support order. However, the Court believes that the person had a legitimate reason or excuse for failure to pay, such as loss of job (being fired, laid off), decrease in income, disability, injured at work, unable to work, medical problems, or a myriad of other excuses or explanations. The judge also may not accept any of the above stated excuses as justification for failure to pay.

A person found to be in technical contempt will not be sentenced to the Adult Correctional Institution (aci) (jail)! However, the person may be ordered to find employment, raise a lump sum, stay current and / or make payments on the arrearage, pay attorneys fees, make certain lump sum payments, obtain a second job etc.

Most Judges have little patience for people who do not support their children. If the person has an excuse for nonpayment it better be a good one or they may find themselves in Jail. The amount of arrears and the person’s history for compliance or noncompliance is often crucial in a judge’s determination! If a person has a long history of nonpayment then that person has a much higher likelihood to be held in willful contempt.

The more a person owes the more likelihood that the person will be held in willful contempt.

At a hearing the judge will look at all relevant supporting documentation that has been offered into evidence. The judge will almost always ask what the person can pay at that moment or whether they are able to immediately borrow money from friends or family. The Usual Dialogue is – “how much can you come up with to stay out of Jail and how quickly can you pay?” The RI Family Court judge may also be interested in whether a person has assets that he or she can sell.

If a person’s circumstances change then they need to file a motion to modify or suspend their child support rather then not make the payments! Child support does not automatically modify upon circumstances changing. If a modification is granted then the modification will be retroactive to the date of filing of the motion to modify not the date the circumstances actually changed. This does not mean that a person can unilaterally change their child support when they file a motion. It means that the child support will run retroactive after the Family Court issues an order modifying the child support. Therefore, if a person loses their job, becomes disabled, their hours are reduced or their pay decreases they must immediately file a motion to modify.

Child support can only be changed or modified if a motion is filed and an order enters. In many instances the judge’s response to a person’s plea to not hold them in contempt because they lost their job or their income decreased will be something like: “you should have filed a motion to modify or suspend child support when your circumstances changed rather than not pay.”

Willful contempt:

A finding of willful contempt means that the judge believes that a person is thumbing their nose at the Court or has no reasonable justification for nonpayment. It could result from the judge not believing that the stated excuse for nonpayment is a justifiable excuse. A finding of willful contempt could also mean the following: 1) the person has the ability to pay and has not made payment 2) the person has not made proper efforts to find suitable employment 3) the person is able to work yet either isn’t working, is underemployed or not making proper efforts to find employment.

The judge may believe that the contempt is willful because the person is lying, exaggerating his excuse or that the person is not acting in good faith.

If a person is found in willful contempt for not paying Rhode Island child support, the person could be sentenced to the aci from day to day. Contempt sanctions are technically not criminal proceedings! However, since the sanctions could lead to jail time, they are quasi criminal proceedings. Contempt proceedings are not technically criminal because they are intended to compel compliance with child support orders rather then punish for nonpayment!

If a person is sentenced to the aci from day to day, then the judge of the Rhode Island Family court will usually state that upon payment of certain amount the person will be released from jail. In child support contempt proceedings there is always a ticket out of jail by making a certain payment. A person could be held in willful contempt and not be sentenced to the aci.

Terminating Rhode Island Child Support:

How do I terminate my obligation and stop wage garnishment in Rhode Island?

In Rhode Island (RI) child support does not automatically terminate when a child reaches 18 years old! Termination of a child support order is not automatic in Rhode Island! An  order / obligation will only terminate if a motion to terminate is granted by a Judge of The Rhode Island Family Court.  Unlike a motion to modify child support, a DR6 financial statement is not necessary unless there is an additional child in which an obligation will continue. If there is an additional child under 18 then a motion to terminate  is really in essence a motion for modification of support.

Pursuant to RI law, child support is eligible to be terminated upon a child attaining the age of 18 and graduating high school but not longer then the child turning 19 years old. If the child is 18 years old and still in high school than child support may continue until the child graduates high school but not longer then the child attaining the age of 19.  If a child is determined to be seriously disabled then child support may continue until the child attains the age of 21. If the Judge finds good cause the child support might continue for three months after graduation from high school.

A person should file  a motion to terminate  approximately 30-40 days prior to the child’s graduation from high school.  If the child did not finish high school then a person should file their motion 30-40 days prior to the child’s 18th birthday. It will take a approximately 30-40 days until the clerk can schedule a hearing for the termination motion.

After the motion to terminate, the attorney must submit proper documentation and orders to the court, the obligors employer (to stop wage garnishment) and to the reciprocal clerk (to amend the computer records) If the computer records are not updated then the computer will continue to show an arrearage which may cause problems including automatic intercept of your tax refund, inability to obtain a passport among other problems.

What County in the Rhode Island Court system will the child support case  be heard?

Al the counties in Rhode Island (Providence, Kent, Newport and Washington County) follow the same general rules and procedures. Providence County includes East Providence, Providence, Cranston, Cumberland, Barrington, Bristol, North Smithfield, woonsocket and other towns and cities. Kent County includes Warwick & North kingston, East Greenwich as well as other towns. Newport County includes Newport, Middletown & Portsmouth. Washington County includes South Kingstown, Wakefield, narragansett etc.

Legal Notice per Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers and attorneys in the general practice of law, but does not license or certify any lawyer/ attorney as an expert or specialist in any field of practice.

Why divorces take place?

Divorce or dissolution of marriage can be defined as an end of marriage or marital vow before the death of either spouse. For carrying out divorce, people need to think on a number of issues such as child custody, distribution of property and so on. To obtain a divorce easily, one can take the help of divorce lawyers.

Assistance of a divorce lawyer

Divorce lawyers play a very important role in obtaining a divorce, especially when minor children and/or properties are involved. A reputed and known lawyer helps its customers with separation, divorce, maintenance, property settlement, child custody, and defacto property settlement. Getting divorce without the assistance of lawyers is a good idea if there are no children or assets are involved and the couple together seeks divorce. Hiring a divorce lawyer means he/she will stand up for your rights concerning a number of issues involving family law and divorce.

Availability of divorce lawyers

The internet is flooded with a number of legal consultants who offer divorce attorneys and lawyers who are ready to work for you. They believe in providing their best efforts to their clients from different walks of life. Most of the reputed and known law firms boast of a number of lawyers and staffs in their offices who are well equipped and available to offer answers concerning divorce and family law questions.

People looking for legal help regarding Divorce and Family Law matters are advised to make an extensive search through the internet as there are a number of legal firms available. Consult them to know about your Divorce or Family Law matters as they offer you an evaluation of the law and explain your options.

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Most of the times, divorcing couples have some things they do not agree on. Spousal and child support are just two of the things that may be brought up to the Minnesota Family Attorney you have hired to represent you. He or she will advise you as to the rights you have, and work to see that these rights are protected. This attorney is working for you, and it his or her job to work with your spouse’s attorney to negotiate a settlement that best serves you and your children.

Dividing assets that have accumulated over the course of the marriage often causes bitter court battles when two people decide to divorce. Who gets what? Your Minnesota Family Attorney knows every aspect of the laws governing this subject and will be able to offer you sound advice, as well as helping you to get what you are entitled to, and protecting those interests. Oftentimes, dividing assets becomes more important to some couples than deciding on custody of the children.

If you have been a victim of some type of spousal abuse, you most definitely need to hire a Minnesota Family Attorney to protect you and see that the abuse does not continue to happen. Your physical well-being is key to obtaining a divorce decree that will free you from this type of situation. Your attorney is there to see that your rights are protected by law, and being free from abuse is the right of every person.

No matter what type of marital situation you may find yourself in, it is very important to have someone representing you who knows the law, and is skilled at negotiating in your best interests. A Minnesota Family Attorney can do this for you, and much more. If you are not sure which lawyer to hire, ask around, or do an on line search of the law firms in the Minnesota area. See what they specialize in and when you find one that you think may suit your needs, make a consultation appointment. Most attorneys provide initial consultations for free.

Brown Family Law is a MN Law Firm of divorce lawyers and Minnesota Family Attorney focusing on Divorce and Family Law cases. Our attorneys represent clients throughout Minneapolis and the Twin Cities area. Call or contact us, or visit our Minnesota Family Attorney Blog for information and guidance in contested divorce, uncontested divorce, child custody cases, child support, and more.

However, there are some individuals or groups who have seen fit to take advantage of the desperation of homeowners, seeking out those who have heard about loans modification, but barely know anything else about it. They propose to do the loan modification on behalf of the homeowner who took out the debt, posing as individuals who are genuinely concerned with helping the homeowner arrange better terms for the loan payment, all the while waiting for the perfect opportunity to scam the homeowner, take their money, and leave them with no loan modification, no money, and soon enough, no home.

How can scams like these be avoided then?

The best way to avoiding being victims of scams in cases like these is to course your loan modification through a law office that also specializes in such transactions. There are existing laws that govern matters loans taken out through a mortgage, hence, there are also experts on these laws that you can consult or even contract to help you regarding the matter.

But then, why would you go to a law office to ask their help in securing a loan modification?

Inside knowledge – law offices, such as The Law Offices of Tenenbaum and Associates, LP, have information that only people on the “inside” of the industry, plus law offices are empowered to do thorough background checks and gather all necessary information to better assess the case and know the particulars before doing anything.

Better settlements – Understandably, legitimate lending and financial institutions will entertain and deal with legal offices accordingly, and therefore take your application for a loan modification more seriously. This is one of the instances where there are definitely perks to having a legal professional on your side.

Better networks – Legal offices necessarily have extensive contacts with various establishments and institutions, most of which they have worked with favorably in the course of their business, thus allowing them a certain level of preference when it comes to dealing with certain companies, since these companies may have been among those who have benefited from such a dealing with the legal office you are working with, making applying for a loan modification significantly easier.

 The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. No civilized law postulates custodial cruelty – an inhuman trait that springs out of a perverse desire to cause suffering when there is no possibility of any retaliation; a senseless exhibition of superiority and physical power over the one who is overpowered or a collective wrath of hypocritical thinking. It is one of the worst crime in the civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens and is an affront to human dignity.

                 Prisoners have human rights and prison torture is the confession of the failure to do justice to living man. For a prisoner, all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. Simply stated, the death of a person in custody whether of the Police or Judicial will amount to Custodial Death. No doubt, the police plays vital role in safeguarding our life, liberty and freedoms. But the police must act properly, showing fall respect to the human rights of the people, remembering that they are also beneath the law, not above it and can be held liable for the violation of human rights. One can always argue that prisons formed islands of lawless discretion in a society guided by the values and often the practice of the rule of law, where the authorities exercised arbitrary power over the prisoner’s lives. The charge of brutal custodial violence by the police often resulting in the death of the arrestees is not new. The figures of Amnesty International in 1992 show the number of deaths in police custody in India during the year 1985 to 1991 was 415. Figures compiled by the National Crime Records Bureau show that during the year 1990-92, as many as 258 rapes and 197 deaths in police custody were reported from all over the country. Needless to say, a large number of custodial violence incidents go unreported. Arun Shourie once observed: The victims were invariably poor. Several of them hauled in on no formal charges at all. Even in the case of persons who were arrested, in an overwhelmingly large number of cases they were all accused of petty offences n fact, the victims of custodial violence are people from poor and backward sections of the society with little political or financial power to back them. Personal enmity, caste and political considerations and at times pecuniary benefits become important considerations for custodial deaths rather than investigation of cases.

Conceptual aspect regarding custodial death

 Law has always discouraged the acts or omissions which in general can affect right in rem and violators have always been punished with strict sanctions but the crime rate is not falling and State is in regular quest to preserve social solidarity and peace in society.  Whenever death occurs in custody, it raises the public interest and attracts media attention. Not that at each time the death is due to violent causes but at times may be due to natural causes or due to inadequate medical facilities or medical attention and diagnosis, or negligent behavior of authorities or may be due to physical abuse and torture. Since time immemorial man has been attempting to subjugate his fellow human beings. Those in power are used to twisting and turning the people through violence and torture, and torture under custody has become a global phenomenon. Men, women and even children are subjected to torture in many of the world’s countries,even though in most of these countries, the use of torture is prohibited by law and by the international declarations signed by their respective representatives. A problem of increasing occurrence and repugnance had been the methods of interrogation and torture perpetrated upon prisoners and detainees. Persons held in custody, by police or by prison authorities, retain their basic constitutional right except for their right to liberty and a qualified right to privacy. The Magistrate inquest is mandatory for any death of a person in custody to ensure examination of the circumstances leading to death. Beyond Magistrate’s inquest and in recent year’s information to Human Right Commission, however, there is no formal public scrutiny of in-prison deaths and under such situations many avoidable factors leading to death remains unexplored.

Constitution provision regarding custodial death

In thepost-Maneka era, in a cantena of cases, the Supreme Court has exposed the cruelty of the system of Prison Administration in India and has sought to humanize it. The Court has taken an active interest in seeking to improve a system which is cruel and insensitive to human pain and suffering. Time and again , the Supreme court has emphasized that Art 14, 19 and 21 ” are available to prisoners as well as freeman. andPrisoners wall do not keep out fundamental Right”Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he is a national or a foreigner. Any violation of this right attracts Article 14, which enshrines right to equality and equal protection of laws. Such rights are discussed in the International Covenant on Civil and Political Rights (ICCPR) as well. The Constitution recognizes it to be fundamental in the governance of the country that the State shall direct its policy to secure conditions of freedom and dignity and insulates against all forms of tyranny against mind and body and their freedom to grow fearlessly. All custodial safeguards in the constitutional and other laws are meant to protect human dignity and shun barbaric approaches. This is why no person accused of any offence shall be compelled to be a witness against himselfArt.20(3), a person is entitled to know why he is arrested for being detained in custody and to consult a legal practitioner of his choice . The right to live with human dignity enshrined in Art. 21 derives its life and breath from the directive principles of State policy particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 as held by the Supreme Court in Bandhua Mukti Morcha case. Art. 142 empower the Supreme Court to ‘make such order as is necessary for doing complete justice in any cause or matter pending before it. The power of the Supreme Court under this provision is meant to supplement the existing legal framework in order to do complete justice between the parties and not to supplant it.  It is intended to prevent any obstruction in the stream of justice . The innovations made by the Supreme Court is not only reducing the multiplicity of litigation but also helping the courts to render speedy justice to victims of the infringement of right to life and personal liberty. In Nilabati Behera vs.State of Orissa, where, the Supreme Court awarded damages against the state to the mother of a young man beaten to death in police custody. In tune with the constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizens. Chapter V of the Criminal Procedure Code 1973 deals with the powers of arrest of a person and the safeguards which are required to be followed by the police to protect the interest of the arrested person. Section 41, Cr. PC, confers powers on and police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this section no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to prevent the escape of the person. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest .The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the went of his arrest for a non-bailable offend. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes clause (2) of Article 22 of the Constitution of India. There are some provisions also like Sections 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. In  Francis Corallie Mullin v.Union Territory of Delhi, the Supreme court has condemned cruelty  or torture as being violative of art 21 in following words ” any form of torture and cruelty or degrading treatment would be offensive of human dignity and it would on its view , be prohibited by article 21. It would be seen that there is implicit in article 21 the right to protection against torture or cruel, inhuman which is enunciated in Article 5 of Universal Declaration of Human right  and guaranteed by Article 7 of International Covenant on Civil and Political Rights”.

 Police atrocities: some concern

 Custodial violence, including torture and death in the lock-ups, are committed under the shields of “uniform” and “authority” between the four walls of a police station, lock-up and prison, where the victims are totally helpless The custodial deaths are neither usual nor unknown. Such deaths take place not only in India but also in various other countries. These deaths definitely lead to custodial violence. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence of confession often resort to third degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the newspaper almost everyday carrying reports dehumanizing torture assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the Rule of Law and the administration of criminal justice system. The community rightly feels perturbed. Society’s cry for justice becomes louder. In State of Maharashtr v. Ravi Kanth S. Patit,° held, that handcuffing and parading of an under-trial prisoner was violative of Article 21 of the Constitution. The State and not the police was asked to pay compensation to the victim. Although torture is not expressly countermanded by the Constitution, Article 21 clearly provides protecting against it.

The arrest of a person suspected of crime does not warrant any physical violence on the person or his torture. But, when the captive exercises his fundamental right to silence against self-incrimination, Art. 20(3) .During his interrogation, the police often abuse their authority by use of criminal force to extort information. Sections 330 and 331 of the Indian Penal Codeprovide for punishment to one who voluntarily caused hurt or grievous hurt to extort the confession or any information which may lead to detection of an offence or misconduct. The ambit of these sections is wide enough as to extend to all policemen then present, but, who do nothing to prevent torture and either stand unconcerned or withdraw from the scene for fear of getting themselves implicated therein. Such  observation came to be seen in Sham Kants’ case,wherein it was held that “the learned trial Judge was quite wrong when he did not hold accused No.1 (ASI) guilty of abetment only on the ground that although he was present, he had not actively participated in beating the suspect.”The Third Report of the National Police Commission in India expressed its deep concern with custodial violence and lock-up deaths. It appreciated the demoralising effect which custodial torture was creating on the society as a whole it made some very useful suggestions. It suggested¬

  An arrest during the investigation of a cognizable case may be considered justified in one or other of the following the Circumstances.

          The expression “life or personal liberty” in Article 21 includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person. The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty. The Latin maxim salus populi est suprema lex (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the State is the Supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be “right, just and fair”.  As held by the Supreme Court in a case that “custodial torture” is a naked violation of human dignity and a degradation which destroys, to a very large extent human personality. Here the SC had prohibited the use of third degree methods on suspects and framed various guidelines for protecting their human rights.

Custodial death: Violative of human right  Judicial conscience recognized human rights of prisoners because of its reformist approach and the belief that convicts is also human beings and that the purpose of imprisonment is to reform them rather than to make them hardened criminals. The Universal Declaration of Human Rights 1948, adopted and proclaimed by the General Assembly Resolution 217A(III) of 10th December, 1948 declared in the preamble that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. The expression-”Human Rights” has not been specifically defined in any Declaration or Covenant of the United Nations.- Human Rights are generally defined as “those rights which are inherent in our nature and without which we cannot live as  human beings” recognition of these natural rights of human beings is as ancient as the human civilization. . India was one of the signatories of the Universal Declaration of Human Rights, and acceded to the two International Covenants by depositing the Instrument of Accession of April 10, 1979. The Vienna Declaration and Programme of Action adopted on June 25, 1993, by the World Conference on Human Rights declared that “Human Rights and fundamental freedom are the birth right of all human beings”. The Human Rights are now recognized as the limits to the exercise of power by the State over individuals.

The Apex Court’s Concern

 These requirements ensure, the record of the police personnel arresting and handling the arrestee, the record of arrest, the record of his whereabouts during detention, giving of information to his relative or acquaintance having interest in his welfare, periodic medical examination of the arrestee to ascertain whether any force is used and the state of his health which in custody, preparation of “Inspection memo” recording injuries if any on the arrestee so that the events of custodial violence can be easily detected and the perpetrations are duly dealt with. These requirements which flow from Art. 21 and 22(1) of the Constitution are ordered to be strictly followed not only by the Police agencies but also by the other governmental agencies. The Apex Court through judicial activism evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life.The ‘Bhagalpur blinding case was the first case where the question of monetary compensation was considered by the Hon’ble Supreme Court.In Nilabati Behera v. State of Orissa it was held,” Adverting to the grant of relief to the heirs of victim of custodial death for the infraction or invasion of rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of in civil suit to claim damages for the tortuous act of the State ,is that remedy in private law indeed is available to the aggrieved party”. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the Courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writ and the Courts have, therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. Here the Supreme Court awarded damages against the State to the mother of a young man beaten to death in police custody. The Court held that its power of enforcement imposed a duty to ‘forge new tools’, of which compensation was an appropriate one where that was the only mode of redress available. It was said that if death in police custody the deceased is entitled for monetary compensation under article 32 and 226 of constitution of India. This was not a remedy in tort, but one in public law based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply. The apex court in Sebastian M Hongrey v. Union of India  where Supreme Court by a writ to herbs corpus required the Government of India to produce two persons and Government eventually failed to produce them expressing its inability to do so and the assertion of the Government that the person left certain camp near which a certain army regiment was stationed alive was untenable and incorrect, the Government would be guilty of civil contempt because of the willful disobedience to the writ. The Apex Court keeping in view the torture, agony and mental oppression of the family members of such persons, directed payment of cost of Rs. 1 lakh each.In (SmtJ Nilabati Behrn @ Lalita Bahera v. State of Orissa , the Apex Court held that violation of human rights by the State should be compensated and writ of compensation is maintainable. It further held that sovereign immunity is not applicable in case of violation of fundamental rights. In a decision of the Supreme Court in People’s Union for Liberties v. Union of India hich was u case from Manipur, a disturbed area, in which case there was a fake encounter and two persons alleged to be terrorist- were seized by police, taken to a distant place and shot at causing their death it was held that such administrative liquidation cannot be permitted and interference of the Court is called for. The Apex Court awarded a compensation of rupees 1 lakh to families of each of the deceased. The apex court in Raghubir Singh v. State of Haryanaheld that the society was deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril, when the guardians of law gore human rights, to death. This development is disastrous  our human right awareness and humanistic constitutional order 

Human Rights Commission – A silver lining

 The official machinery for the protection of human rights in this country was set in motion by the then President’s assent to the Protection of Human Rights Act came in to force on September 28,1993. Section 3 of the Act provides for the setting up of the National Human Rights Commission (NHRC) and Section 21 for the setting up of the various State Commissions (SHRC). The National Human Rights Commission in its Annual Report of 1997-98 records that during the year 1996-97, 188 deaths in Police Custody were reported and during the year 1997-98, 193 deaths in Police Custody, and 700 deaths and 819 deaths respectively in judicial custody were reported to the Commission. In the context of addressing the issue of custodial torture, the Commission has reiterated its earlier recommendations by soliciting early action on the suggestion of the Indian Law Commission to the effect that proposed Section 114(B) be inserted in the Indian Evidence Act to introduce a rebuttable presumption that injuries sustained by a person in police custody may be presumed to have been caused by a Police Officer, as well as the suggestion for amendment in Sec. 197 of the Cr. P.C. to obviate the necessity for governmental sanction for the prosecution of a police officer where a prima-facie case has been established in an inquiry conducted by a Sessions judge in the commission of a custodial offence, as also the suggestion by the National Police Commission that there should be a mandatory inquiry by a Sessions Judge in each case of custodial death, rape or grievous hurt.      

 The law commission recommended in its 113th Report that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police officer, the court may presume that the injury was caused by the police officer having the custody of that person during that period.  In Shyamsunder Trivedi’s case the Supreme Court also expressed that hope that the government and legislature would give serious thought to the recommendation of law commission. Unfortunately, the suggested amendment has not been incorporated in the statute so far. The need of amendment requires no emphasis, sharp rise in custodial violence, torture and death in custody, justifies the urgency for the amendment and the court invites Parliament attention to it.

Conclusion-

 The cases that come to light reflect the cruelty with which the human beings brought in custody or control are treated by their fellow human beings. Such cruel demeanors of human beings would put to shame even wild carnivorous beasts and terrify and benumb tigers witnessing the skinning of a mighty tigress in the helpless custody of her captors supposed to protect and preserve the specie.Detection and deterrence would be the key factors for preventing the recurrence of such incidents.An efficient and independent machinery to detect such cases and prompt action to punish the erring officials can ensure some safety against custodial violence. Section 37 of the Protection of Human Rights Act, 1993 empowers the Government to constitute one or more special investigative teams consisting of such police officers as it thinks necessary for the purpose of investigation and prosecution of offences arising out of violations of human rights .The renaissance of the doctrine of natural rights in the form of human rights across the globe is a great development in the jurisprudential field in the contemporary

[1] Sonakshi Verma,B.A LL.B, 3nd  year ,Ram Manohar Lohiya National Law University