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Vol 23 No 5 May/June 2018

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Drafting Commercial Agreements

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Indians, NRIs and the Law

ISBN13: 9789350351246
Published: October 2011
Publisher: Universal Law Publishing Co.
Country of Publication: India
Format: Hardback
Price: £35.99

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The third volley of NRI Law Collection penned by legal luminaries Anil and Ranjit Malhotra is about to be launched by Mr. SoliSorabjee. Starting with a touching salute to the late patriarch Ram Niwas Mirdha, the legal baggage in the book titled ‘Indians, NRIs & the Law’ has35 short crisp pieces and 9 detailed expositions. Admirably crafted, the 450 pagecompilation is a store house of NRI Law profusely complimented with Jacket Commentsinternationally. It is a culmination of the authors’ professional experiencesof handling NRI disputes in courts worldwide and their participation in conferencesscattered over London, Munich, Netherlands, Vancouver,Cape Town, Perth,Rio de Janeiro and Hyderabad.

The headings reveal it all. Some are, “Can a Broken MarriageBe Stitched Together?”, “No Bull in a China Shop of NRI Divorces & Anti-suitinjunctions”, “Dispute Resolution in The Family the Law forgot” , “Pre-Nuptial Agreements: Unsuited in the Indian context.”, “NRI Commissions-An adventurous agenda”, “VotingRights for NRIs-An Optical Illusion”, “Human Smuggling- The Dark Side Of TheMoon”, “Illegal Immigration- Merchants Of Death”, “Going Abroad-In Jail”, “HinduMarriages- Made In Heaven, Celebrated In India, & Dissolved In USA”, “Corbett’sLegacy”, “All Aboard For The Fertility Express”, “Socio-Legal Perspectives OfForced Marriages-Perceptions & Solutions”, “To Return or Not To ReturnAbducted Children”, “Key Inbound Business Immigration and Employment Issues”, “Conflictsof Adoption Laws”, “Law of Arrest inIndia” and “International Arbitration Issues”. The list goes on and onendlessly.

Quoting the Supreme Court in Baby Manji Yamada (AIR 2009 SC84), “Commercial surrogacy” reaching “industry proportions is sometimes referredto by the emotionally charged and potentially offensive terms: Wombs for rent,Outsourced pregnancy or baby farms, ”, the authors state that surrogacy is said to legal because it is not illegal. The authors think that forced and early marriages entrap women andyoung girls in relationships that deprive them of their basic human rights andthat the Government has to take stringent action against the extra judicialbodies which have so far been shielded from any State intrusion due topolitical reasons. Human smuggling has been described by the authors as “A tradein which Indian youth have been bought and sold as literal slaves like anyother commercial merchandise recently in Iraq.”In the view of the authors “Modern concepts and issues including commercialsurrogacy, inter-country adoptions, inter-parental child removal,inter-continental matrimonial litigation and instances of global child abusepresent new challenges. The law never anticipated or visualized these newgeneration legal complexities, and hence statutory law in India contains no provisions to define or rectify them”

The Foreword of Mr. Soli Sorabjee reads “The book will be extremely useful to academicians, Judges, policy makers, overseas and Indian lawyers as also to foreign readers by providing answers to unresolved problemsin new emerging areas of the vast Indian Diaspora scattered around the world.”No doubt, the text does justice to 30 million NRIs scattered in 180 nationsabroad. The celebrated work is a milestone in NRI history.

Other Jurisdictions , India
Foreword by Soli J. Sorabjee vii
• Preface ix
• Professional Profile of Anil Malhotra xiii
• Professional Profile of Ranjit Malhotra xv
• Table of Cases xvii
A Salute to a Patriarch 1
Merchants of Death 3
Trial of NRI Matrimonial Criminal Offences 5
Fresh Directions in Custody Battles 8
Can a Broken Marriage be Stitched Together? 13
Dispute Resolution in the Family the Law Forgot 15
No Bull in a China Shop of NRI Divorces and Anti-suit Injunctions 17
Hindu Marriages : Made in Heaven, Celebrated in India and Dissolved in USA 19
Inter-country Adoptions: New Guidelines Attractive, but Illusory 22
Pre-nuptial Agreements: Unsuited in the Indian Context 24
More Questions than Answers Over Rent-a-Womb Market 30
One Stop Shop for Resolution of NRI Problems 33
Punjab State Commission for NRIs – An Adventerous Agenda 35
Voting Rights for NRIs: An Optical Illusion 38
Cancelled Indian Passports 40
Dynamics and Dimensions of Human Smuggling: The Dark Side of the Moon 42
Human Smuggling: What Punjab must do 46
Going Abroad — In Jail 51
Legalising Surrogacy — Boon or Bane? 53
Law for Non-resident Indian Families – A Dilemma 55
Sign the Hague Convention for Childrens’ Sake 60
Single Law Needed for NRIs 62
India’s Dilemma on Inter-parental Child Removal 64
NRIs Property Related Problems – The Punjab Model 67
NRI Marriages-Problems and Possible Solutions 76
Mediation, Conciliation and the Role of Courts 82
Alternative Dispute Resolution and the Role of Indian Courts 87
Key Issues of International Commercial Arbitration 97
Interference in Arbitral Awards on Grounds of Public Policy – A Key Issue in International Arbitration 102
Transparency and Accountability in Delay in Criminal Justice 106
xii Indians, NRIs and the Law
Human Rights: Limitations and Judicial Review – The Indian Perspective 111
The Doctrine of Judicial Precedent: Stare Decisis & Per Incuriam 122
Globalisation of Law and the Common Man 128
The Supreme Court of United Kingdom 132
Corbett’s Legacy 134
Custom as an Important Source of Hindu Law: Its Usage in International Family Migration 136
Socio-legal Perspective of Forced Marriages in the Indian Context: Perceptions and Possible Solutions 160
All Aboard for the Fertility Express 203
Conflict of Law in Inter-country Adoptions: The Indian Perspective with Special Reference to the Position After India Ratifying the Hague Convention on Adoptions 232
Alternative Dispute Resolution in Indian Family Law – Realities, Practicalities and Necessities 301
To Return or Not to Return: Hague Convention v. Non-Convention Countries 324
Key Inbound Business Immigration and Employment Issues: Relocation of Foreign Business Personnel in India 341
Child and Family Law in India 361
Brief Overview of the Law of Arrest in the Indian Jurisdiction 396
• Subject Index 448.