0

Stages of Contested Divorce

When the marriage does not result in marital cooperation and harmony, it results in a divorce. Divorce law provides the framework that governs the circumstances under which a marriage may be brought to an end and spouses are free to remarry. A divorce can be caused due to a few reasons and can be either a mutual divorce or a contested divorce. We here will provide an excellent explanation for contested divorce.

CONTESTED DIVORCE: A contested divorce is one where the husband or the wife wants a divorce, but the other spouse does not. Even when both the parties want a divorce, but cannot agree on any issue such as alimony, custody of children, etc., it is a case of contested divorce.

Grounds for a contested divorce

  • Adultery– Adultery means after the solemnization of the marriage, anyone whether the husband or wife had voluntary sexual intercourse with any person other than his or her spouse. In India, earlier, adultery was a criminal offence but in a recent Supreme Court judgment adultery has been decriminalized. But it still can be used as a ground to seek divorce from a spouse who has been committing adultery.
  • Cruelty-It is described as a deliberate act which can endanger physical and mental health. It can lead to suffering, mental or physical violence, and torture.
  • Desertion– Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent. If one of the parties deserts the other one without giving any reasonable reason, then, it is a good reason to obtain a divorce from the other.
  • Religious Conversion-If one of the partners is no longer a Hindu, then the justification for divorce may be found in a Hindu marriage.
  • Insanity–If the spouse is unable to perform the normal duties that he or she is required to perform due to some mental illness or disorder then, in that case, divorce can be sought. However, if the mental illness does not hamper the capabilities of the person from performing his or her duties then the divorce cannot be claimed.
  • Leprosy-If the spouse has been suffering from some virulent and incurable form of leprosy, then, the aggrieved can seek divorce. Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is transmitted from one person to another. Thus it is considered as the valid ground for divorce.
  • Venereal Disease– Under this concept, if the disease is in communicable form and it can be transmitted to the other spouse, then this can be considered as the valid ground for divorce.
  • Renunciation– It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead.
  • Presumption of Death– In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.

Naveen Kohli versus Neelu Kohli, (2006) 4 SCC 558 – It was held that the marriage had been destroyed past any expectation of salvation, the court held that open intrigue and the interests of all concerned lay in the acknowledgement, in law, of this reality. That despite the fact that the spouse was not pleasing to separation by common assent and appeared to have made plans to live in anguish just to make the life of her significant other a hopeless heck, open intrigue lay in the disintegration of the marriage bond. Keeping a hoax of marriage alive in law was held to be increasingly helpful for unethical behaviour and conceivably more biased to the open enthusiasm than the disintegration of a marriage. Not conceding a separation under such conditions was held to be awful for the gatherings. The allowing of separation would offer them the possibility, both mentally and inwardly, to settle down sooner or later and start another part throughout everyday life

Information/Documents required for contested divorce

  • Aadhar card of the Petitioner.
  • Residence Facts of marriage between husband and wife.
  • Photos of marriage of the husband and wife.
  • Descriptions of husband’s and wife’s occupation and income today.
  • Three financial years’ income tax statements and bank statements.
  • The provisions / facts on which the divorce is filed.

Steps for filing a contested divorce

  • Step 1:Drafting and submission of the petition (submissions for divorce) -The application drafted must be submitted to a family court together with the corresponding court fees. For the preparation of your petition, you need the right advice and guidance from a reputable and competent and experienced divorce lawyer.
  • Step 2: A summons/notice is issued by a court of law to the second party. The purpose of a summons is to remind the other party that their wife/husband initiated the divorce process.
  • Step 3: The party shall be present at the Family court on the day specified in the summons after the summons has been issued along with the reply/written statement.
  • Step 4:After the submission of the reply, the parties to divorce must provide sufficient proof and evidence at the Court in this stage. The test and cross-examinations of the parties, witnesses and testimony must be performed before the courts by respective lawyers. This is an important step in the divorce process.
  • Step 5: Argument – On the basis of documentary proof submitted and testimony, argument is made by the counsel of both of the parties.
  • Step 6: Final Order- Upon effective completion of all the previously listed steps, the Court must issue a final order. If any party is not happy with the final order, the same can be questioned in superior courts.

If you are looking for top contested divorce lawyer in Delhi, you can reach to our law firm. We have a team of experienced family court lawyer to help you in complex and tough divorce litigation. Our team of professional lawyer work hard to provide you hassle free legal assistance in matter related to divorce law.

 

 

0

RIGHTS OF CONSUMER

The concept of protection of rights of the consumers is not new; rather it is a practice that has been present in the society and various countries in one form or the other historically. In India, the Consumer Protection Act was enacted in the year 1986 with an aim to provide more protection to consumers against the evil practices of the market. It effectively deals with the problems faced by an individual consumer and has no express provisions regarding “maintaining or increasing supplies of any essential commodity or for securing their equitable distribution, and availability at fair prices or dealing with persons indulging in hoarding and black-marketing of, and profiteering in, essential commodities and with the evil of vicious inflationary prices”.

The Act is seen as an attempt to remove the helplessness of consumers against the powerful and dominant players like the merchants and businessmen. The greatness of the Consumer Protection Act lies in its flexible legal framework, wider jurisdiction, and inexpensive justice. One can find in this legislation a mixture of principles of torts and contracts.

Who Is A Consumer?

As per sec. 2(d) of the Act, ‘consumer’ has been defined as any person who:

  • buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
  • hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.

In the case of Consumer Unity and Trust v. State of Rajasthan and others 1991 (CPR) State Commission Jaipur, it is stated that the following are the conditions required to claim as a consumer.

1) He should be served.

2) The service should be hired by him.

3) For the hire of the service, he should pay the return as per Section 2 (1) (d) (2) of the Act

In the case of M / s Cosmopolitan Hospital v. Basant Nayar 1992 (1) CPJ 302 National Commission, treatment was received by the complainant on consideration. The complainant comes under the category of consumer; the complaint presented by him against the hospital is prevalent.

In another case, the complainant was ill. The complainant received medical services in a private hospital by reward. The tenant had given ten thousand rupees to the hospital. The hospital suggested that specialist services should be obtained. The complainant paid the fee to the defendant for obtaining the services of a specialist. The fee in the hospital was given to the specialist concerned. In this situation the consumer situation of the complainant was to be considered. In the case of presenting a complaint against both the complainant hospital and the concerned specialist, it is considered to be the status of the consumer.

In the event of borrowing a vehicle, the borrower is considered to be a consumer Surendra Kumar Aggarwal became Telco Finance Limited 2006 CPJ 68 State Commission Chhattisgarh In this case it was argued that the complainant had purchased the vehicle in question for commercial purpose. Therefore, the status of the complainant was not a consumer under the Act. Determined by the State Commission that we find that the dispute is in relation to providing finance service in purchasing the vehicle in question. The position of the complainant was considered as a consumer. The decision by the National Commission in this regard expressed reliance on the National Insurance Company 2005 A CPJ 27 National Commission against Harsolia Motors. The objection of the complainant not being a consumer was invalid. The corporation is not a consumer The corporation had submitted a complaint in the case of Punjab Land Development v. Mahendra Jeet Singh 2004 (3) 156 CPJ Union Territory Commission Chandigarh. The corporation’s position was not considered consumer.

Jurisdiction of Consumer Forum

In India consumer court is categorized in hierarchal ways:-

  • The top most is National Consumer Disputes Redressal Commission (NCDRC). A top consumer matter lawyers files a consumer claim before NCDRC if the value of the claim exceeds 1 crore. Our best delay possession lawyers also files cases before NCDRC against the fraud builders.
  • The second one is the State Consumer Dispute Redressal Commission where the matter is filed by our best consumer lawyers if the value of the claim exceeds 20 lakhs but is within 1 crore.
  • The third is the District Consumer Dispute Redressal Forum. Our team of best consumer lawyers represents the cases before various District Forum if the value of the claim is upto 20 lakhs.

Who can file a consumer complaint?

  1. A consumer to whom the goods are sole or are agreed to be sold or service has been rendered or agreed to be provided.
  2. A firm, irrespective of it being registered or unregistered.
  3. An individual.
  4. A Hindu undivided family.
  5. An association of persons or a cooperative society.
  6. State Government or Central Government.
  7. Legal heirs of the consumer if he/she is deceased.

Procedure for Filing a Complaint

A complaint can be filed by a complainant against the seller, manufacturer, or dealer of goods which are defective or against the provider of services if they are deficient in any manner whatsoever. An unfair trade practice or restrictive trade practice can also invite complaint.

Having proof along with your complaint is an essential point and makes your case stronger since the beginning. Copies of documents like cash memo, receipts, agreements, copy of the bill of the goods bought, warranty and guarantee documents and also a copy of the written complaint and notice made to the trader requesting him to rectify the product, etc., are to be submitted along with the complaint. The complainant is required to file three copies of the complaint, together with enclosures, for official purpose plus copies for the number of Opposite Parties. In case the transaction took place on an online platform, the consumer must contain with him prints of the information exchanged via e-mails, the record exchanged via e-mails.

Also, certain fee has to be paid along with the complaint. This is a nominal amount prescribed by the redressal forum according to the amount of compensation claimed. It is to be paid via postal order or a demand draft.

Consumer Protection Act (CPA), 2019

The new Consumer Protection Act, 2019 effectively replaces the nearly three decade old Act and tried to mold itself to live up to the expectations of a digitalized-modern-consumer. The Digital Age has ushered in a new era of commerce and digital branding, as well as a new set of customer expectations. Digitization has provided easy access, a large variety of choice, convenient payment mechanisms, improved services and shopping as per convenience. However, along the growth path it also brought in challenges related to consumer protection.

Rights of Consumers

The new act has defined some rights of the consumers. They include six rights which are as follows:

  • Right to be protected against the marketing of goods, products or services which can be hazardous to life and property
  • Right to be informed about the quality, quantity, potency, purity, standard and price of goods, products and services
  • Right to be assured of access to goods, products and services at competitive prices.
  • Right to be heard at appropriate forums
  • Right to seek redressal against unfair trade practices that are involved in exploitation of customers
  • Right to consumer awareness

Set out below are some of the Key Highlights of the New Act:

  • Enhancement of Pecuniary Jurisdiction:Revised pecuniary limits have been fixed under the New Act. Accordingly, the district forum can now entertain consumer complaints where the value of goods or services paid does not exceed Rs. 10,000,000/-. The State Commission can entertain disputes where such value exceeds Rs.10, 000,000/- but does not exceed Rs.100,000,000/-, and the National Commission can exercise jurisdiction where such value exceeds Rs. 100,000,000/-
  • E-Filing of Complaints: The New Act provides flexibility to the consumer to file complaints with the jurisdictional consumer forum located at the place of residence or work of the consumer. This is unlike the current practice of filing it at the place of purchase or where the seller has its registered office address. The New Act also contains enabling provisions for consumers to file complaints electronically and for hearing and/or examining parties through video-conferencing. This is aimed to provide procedural ease and reduce inconvenience and harassment for the consumers.
  • Establishment of Central Consumer Protection Authority: The New Act proposes the establishment of a regulatory authority known as the Central Consumer Protection Authority (CCPA), with wide powers of enforcement. The CCPA will have an investigation wing, headed by a Director-General, which may conduct inquiry or investigation into consumer law violations. The CCPA has been granted wide powers to take suo-moto actions, recall products, order reimbursement of the price of goods/services, cancel licenses and file class action suits, if a consumer complaint affects more than 1 (one) individual.
  • Product Liability & Penal Consequences: The New Act has introduced the concept of product liability and brings within its scope, the product manufacturer, product service provider and product seller, for any claim for compensation. The term ‘product seller’ is defined to include a person who is involved in placing the product for a commercial purpose and as such would include e-commerce platforms as well. The defense that e-commerce platforms merely act as ‘platforms’ or ‘aggregators’ will not be accepted. There are increased liability risks for manufacturers as compared to product service providers and product sellers, considering that under the New Act, manufacturers will be liable in product liability action even where he proves that he was not negligent or fraudulent in making the express warranty of a product. Certain exceptions have been provided under the New Act from liability claims, such as, that the product seller will not be liable where the product has been misused, altered or modified.
  • Covers E-Commerce Transactions: The New Act has widened the definition of ‘consumer’. The definition now includes any person who buys any goods, whether through offline or online transactions, electronic means, teleshopping, direct selling or multi-level marketing. The earlier Act did not specifically include e-commerce transactions.
  • Unfair Trade Practices: The New Act introduces a specific broad definition of Unfair Trade Practices, which also includes sharing of personal information given by the consumer in confidence, unless such disclosure is made in accordance with the provisions of any other law.
  • Penalties for Misleading Advertisement:The CCPA may impose a penalty of up to Rs.1, 000,000/- on a manufacturer or an endorser, for a false or misleading advertisement. The CCPA may also sentence them to imprisonment for up to 2 (two) years for the same. In case of a subsequent offence, the fine may extend to Rs. 5,000,000/- and imprisonment of up to 5 (five) years. The CCPA can also prohibit the endorser of a misleading advertisement from endorsing that particular product or service for a period of up to 1 (one) year. For every subsequent offence, the period of prohibition may extend to 3 (three) years.

The New Act fixes liability on endorsers considering that there have been numerous instances in the recent past where consumers have fallen prey to unfair trade practices under the influence of celebrities acting as brand ambassadors. In such cases, it becomes important for the endorser to take the onus and exercise due diligence to verify the veracity of the claims made in the advertisement to refute liability claims.

  • Provision for Alternate Dispute Resolution: The New Act provides for mediation as an Alternate Dispute Resolution mechanism, making the process of dispute adjudication simpler and quicker. This will help with the speedier resolution of disputes and reduce pressure on consumer courts, who already have numerous cases pending before them.

With the New Act all set to become the law, gone are the days, where the ‘consumer was asked to beware’. A consumer is now the one who assumes to be treated like a King. Hence, it is important for consumer driven businesses (such as, retail, e-commerce) to be mindful of the changes in the legal landscape and have robust policies dealing with consumer redressal in place. Consumer driven businesses must also strive to take extra precautions against unfair trade practices and unethical business practices.

Looking for a consumer lawyer, hire our best consumer matter lawyers. The lawyers at Legalmax Law Firm have wide experience to assist the consumer matters. Our best consumer lawyers use the strength of the consumer laws to safeguard the right of the consumer. Our law firm represents the consumer cases not only to recover the losses of the consumer but helps them to get the compensation they deserve.

 

 

0

A Heinous crime “RAPE”

The crime of rape has shaken the whole of India and this crime has emerged as an epidemic for Indian society. Several attempts are being made by the state and Indian legislation to stop this crime. In society, the crime of rape has come as a curse; efforts are being made to stop rape at various social levels. Not only adult women are victimized by crime like rape, but also the young girls are suffering from heinous crime like rape.

In the case of Shri Budhwar Gautam vs. Shubhra Chakravarti AIR 1996 SC 922, it has been held by the Supreme Court that the crime of rape is a crime against human rights. This violates the right to live. 

There are two sections in the Indian Penal Code regarding the crime of rape. Section 375 and Section 376 of IPC, 1860.

 Section 375 of the Indian Penal Code in relation to the definition of rape. This section provides a clear explanation of rape. Rape is a crime in which the consent of the woman with intercourse is questioned. Sexual intercourse is also defined under this section. At one time, penetration of the penis into the vagina was considered sexual intercourse, but changes were made to this definition over time.

In 2013, revolutionary amendments have been made under this section. Different definition of sexual intercourse is given. Sexual intercourse under Section 375 of the Indian Penal Code can be done as follows- A man –

(a) – enters his penis at any stage in a woman’s vagina, her mouth, urinary tract or anus, or by any of his Provides with another person or

(b) – any such object in a woman’s vagina, urinary tract, or anus, it covers any part of the body which is not gender to any extent or it does so with any other person Provides or

(C) – Hand wares any part of a woman’s body in such a way that a woman’s vagina, anus, urinary tract can be penetrated into any part of the body or does it with any other person or

(d)  – He puts his mouth on a woman’s vagina, anus, urinary tract or does it with her or any other person.

Any such act is subject to seven conditions, which are mentioned under Section 375 of the Penal Code, and then it is believed that he has committed rape. From the above definition of sexual intercourse, it appears that the definition of sexual intercourse within the penal code has been greatly expanded in favor of the woman and putting the vagina to the mouth or even the finger will be considered rape but having such sexual intercourse is also a crime.

Those seven circumstances are

  1. Against the will of the woman.
  2. Without the consent of the woman.
  3. The consent of a woman when her consent is obtained by putting her or any person with whom she is interested, in fear of death or injury.
  4. With the consent of the woman when the man realizes that she is not his husband and has given the consent that she believes that there is another man with whom she is lawfully married or believes to be married.
  5. When the woman gives her consent, at the time of giving such consent, she talks about what she consents to due to maladministration or abstinence, or because of a noun or unhealthy substance given by the man personally through someone else. , Is unable to understand the nature and consequences.
  6. With or without the consent of the woman when she is under 18 years of age.
  7. When a woman is unable to communicate consent. When it is sexual intercourse with a woman according to the definition of sexual intercourse given above in seven circumstances, the crime of rape is committed.

In relation to the crime of rape, the definition is very broad because not only consent is not considered a crime, but how this consent is taken has also been taken into consideration. This consent intimidation, intoxication. If it is taken from a woman or a deformed mind or from a woman unable to give consent, then sexual intercourse with such consent becomes rape.

In relation to a minor, sexual intercourse with a minor woman who is less than 18 years of age is considered rape. Even if she had consented to sexual intercourse, she had clearly given such consent. Even after such consent. The accused shall be deemed guilty of rape if he has intercourse with a woman below 18 years of age.

In this case Lalta Prasad vs State of Madhya Pradesh AIR 1997 SC 1276 has this case. There was no evidence that the girl was under 16 years of age, she had sexual intercourse without her consent and hence it was held that the accused was not guilty of rape. What evidence can there be in the crime of rape? There is a lack of direct witness in the crime of rape. The court has to take utmost care regarding the evidence in the rape case and carefully evaluate, analyze the case. Injured marks on the genitals of a woman aggrieved by rape, blood stains on her clothes, and then informing her parents immediately after the incident, some facts which are helpful in proving the crime of rape, hence the decision Time these facts should be kept in mind.

In the case of Bhupendra Sharma v. State of Himachal Pradesh, the Supreme Court has also determined that evidence of rape victim can be sufficient in rape cases, her affirmation is not necessary.

Similarly, in the case of Sudhanshu Shekhar Sahu v. State of Orissa AIR 2003 AC 4684, it has been said by the Supreme Court that the accused can be convicted only on the evidence of the rape victim, but she is safe and reliable. FIR in rape is a prima facie first information report in rape cases required to be filed immediately or there is no strict rule. Due to the fact that they can be pending, only on the basis of delay, the prosecution case cannot be considered untrustworthy.

In Dildar Singh vs State of Punjab. In this, student was raped by a teacher in his charge. She did not tell this thing to anyone due to fear, but when she came to know that she became pregnant, after 3 months, she was forced to tell the whole incident to her mother. Thus after 3 months the First Information Report was filed. The Supreme Court considered it excusable. The rape FIR can be delayed for some reason and the court may consider it a reasonable cause and the delay can be ignored.

Rape of wife. In some recent cases, the topic of rape of wife has also come out. In some cases the Supreme Court has also considered the registration of rape FIR by the wife as valid, but in later cases it was overturned. The second exception to section 375 states that any woman who is the wife of a man. If she is maltreated by her husband or is subjected to some other sexual act, then in such a situation she cannot bring a case of rape.

 If she is less than 15 years of age, then in such a situation she can bring a rape case and if she was mated to a woman younger than 15 years and had any of the following seven circumstances then it would have become a crime of rape. .

The accused of rape will be male only. The first word under Section 375 of the Indian Penal Code is male. Prosecution of rape on a woman cannot be conducted by making a man aggrieved because the word male is used at the beginning of the definition of rape.

Punishment for Rape

Section 376 provided for seven years of jail term to life imprisonment to whoever commits the offence of rape.

Latest Amendments in Rape laws

It is most important to discuss here that the nationwide public outcry, in 2012, popularly known as Nirbhaya Case following the December 16 gang rape and murder in Delhi, led to the passing of the Criminal Law (Amendment) Act in 2013 which widened the definition of rape and made punishment more stringent.

Parliament made the amendments on the recommendation of the Justice J.S. Verma Committee, which was constituted to re-look the criminal laws in the country and recommend changes.

The 2013 Act, which came into effect on April 2, 2013, increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause death of the victim or leaves her in a vegetative state.

It also created new offences, such as use of criminal force on a woman with intent to disrobe, voyeurism and stalking.

The punishment for gang rape was increased to 20 years to life imprisonment from the earlier 10 years to life imprisonment.

In January 2018, an eight-year-old girl in Rasana village near Kathua in Jammu and Kashmir was abducted, raped and murdered by a group of men. The news of the shocking act led to nationwide protests and calls for harsher punishment.

This led to the passing of the Criminal Law (Amendment) Act, 2018 which for the first time put death penalty as a possible punishment for rape of a girl under 12 years; the minimum punishment is 20 years in jail.

Another new section was also inserted in the IPC to specifically deal with rape on a girl below 16 years. The provision made the offence punishable with minimum imprisonment of 20 years which may extend to imprisonment for life.

The minimum jail term for rape, which has remained unchanged since the introduction of the IPC in 1860, was increased from seven to 10 years.

The Supreme Court has ruled that sex on the pretext of marriage is rape and a blow to the honour of a woman.

A bench of Justices L Nageswara Rao and MR Shah in their recent judgement observed that rape offends a woman’s dignity and esteem, and if for the fact the victim and her rapist have already settled in their lives and taking care of their families, could not be considered a ground to have the crime be null and void. 

The court observed that such incidents were on the rise in modern society. 

“It tantamounts to a serious blow to the supreme honour of a woman and offends both her esteem and dignity.”

The judgement came on a case registered by a woman accusing a Chhattisgarh-based doctor of raping her in 2013. The woman, a resident of Koni, Bilaspur, was familiar with the accused since 2009 and had a love affair. 

The accused had promised to marry her and their families were in the know of this. 

The accused was, however, engaged to another woman while he had the affair with the victim. He later broke his promise to the victim and married the other woman with whom he was engaged. An FIR was lodged against the accused and he was convicted of rape. 

our Top criminal lawyers can help you in providing the top quality legal services that you expect. We represent our clients all over India in general and Delhi-NCR in particular.

0

VICTIMS OF DOMESTIC VIOLENCE HAVE A RIGHT TO RESIDENCE AT SHARED HOUSEHOLD OWNED BY IN-LAWS

Women who have been thrown out of their in-laws’ house due to a domestic dispute can now claim the right of residence in the “shared household” even if the house is owned by the in-laws.

In a judgment that would bring relief to many victims of domestic violence, a three-judge bench of the Supreme Court held that “shared household”, under the protection of women from Domestic Violence Act 2005, can also be a house owned by the joint family or any relative of the husband, provided that the woman has lived in that house after her marriage as a long-term resident “in a domestic relationship”.

“In the event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household,” held the bench of Justices Ashok Bhushan, R Subhash Reddy and MR Shah.

This judgment would come as a massive relief to women who have been thrown out of the matrimonial home and denied relief on grounds that the house is the sole property of their father-in-law or mother-in-law.

The bench, in its 150-page verdict, observed that “domestic violence in this country is rampant and several women encounter violence in some form or the other almost every day, however, it is the least reported form of cruel behaviour.”

The bench also observed that the Domestic Violence Act 2005 was a “step to secure social justice by legislation”

The Act 2005 was enacted to give a higher right in favour of the woman. The Act 2005 has been enacted to provide for more effective protection of the rights of the woman who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act,” said the court.

The judgment over-ruled a 2007 judgment in Tarun Batra case of a two-judge bench of the apex court, which had held that “shared household” is limited to a house that is owned or rented by her husband, or by the joint family of which the husband is a member.

Conditions on woman’s right of residence

  1. The bench has clarified that whether or not the residence is in fact a “shared residence” would be determined by the family court where the domestic violence case is being heard.
  2. The court additionally said that “the right to residence under Section 19 is not an indefeasible right of residence in the shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law.”
  3. “The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in the application under Section 12 of Act, 2005 or in any civil proceedings, the court has to balance the rights of both the parties” the court has added.
  4. Relief for the daughter-in-law would also depend on whether the allegation of domestic violence can be proved in the trial.
  5. “It is to be observed that in a case any relief available under Sections 18, 19, 20, 21 and 22 is sought by the aggrieved person in any legal proceedings before a civil court, family court or a criminal court including the residence order, the aggrieved person has to satisfy by leading evidence that domestic violence has taken place and only on the basis of the evidence led on being satisfied that the domestic violence has taken place, the relief available under Section 19 can be granted…” the court said.
Case which led to the judgment

The observations have been passed in a case involving a domestic dispute where a couple married in 1995 and started living in the house owned by the father-in-law. In 2004, a separate kitchen was created on the first floor of the house where the husband and wife lived, while the in-laws lived on the ground floor. In 2014, the husband started living in the guest room on the ground floor, while the wife and children lived on the first floor.

The husband had initiated divorce proceedings in 2014, while the father-in-law filed a plea of injunction, to bar the woman from living in his house.

The trial court had passed an order in favour of the in-laws, which was overturned by the Delhi High court, which held that the woman did have the legal right to claim the right of residence.

The father-in-law then moved the apex court to decide on the legal issues of whether the daughter-in-law could seek rights of residence in his house.

The Apex court has now held that the trial court decision was incorrect, and has directed the trial court to re-adjudicate the matter.

“The claim of the defendant that suit property is shared household and she has right to reside in the house ought to have been considered by the Trial Court and non-consideration of the claim/defense is nothing but defeating the right, which is protected by Act, 2005” the SC has said.

Our law-firm provides you the best lawyers for domestic violence cases. We make sure that legal services we provide are consistent and timely. We ensure that our clients get quality oriented services. Each matter is unique and each solution is carefully crafted. Our best domestic violence lawyer has abilities to think outside the box. Our top lawyers provide good solution to each situation. Feel free to call our expert team of domestic violence and civil suit lawyers.

0

How succession is decided for the property of a Hindu woman who is deceased without a will

The Hindu Succession Act 1956 does not discriminate between Hindu men and Hindu women regarding any form of succession. This method is based on natural affection and scientific approach. It has been built by the Parliament of India on the basis of social harmony and equality. Under this Act, there is a separate scientific way of dividing the property of Hindu man in succession which is described under section 8 of this act.

Under the Hindu Succession Act 1956, the way a man is given rights in relation to succession to property. Similarly, if a Hindu woman is an intestate deceased, then in such a situation the rules of succession of her property have been determined under Section 15 of this Act and the order of heirs of the property of Hindu woman is mentioned under Section 16.

Section 15 of Hindu Succession Act, 1956

This is the second most important section of this Act. Under this section simple rules regarding succession of Hindu women are mentioned. After the passage of the Hindu Succession Act 1956, a Hindu woman has three types of assets.

  • Property received in succession from father or mother
  • Property received in succession from husband or father-in-law
  • All other types of property – as is the general rule, any Hindu person shall inherit the property received by him in succession and the property acquired by him.

He can devise his property anywhere. No law or rule prevents a person from making any will in relation to his property. Any Hindu man or woman can inherit his property anywhere and the offspring of a Hindu man cannot claim that he is entitled to inherit his property because any Hindu man or woman has absolute right. That he will devise his property anywhere. But if the Hindu man or woman does not die in respect of his property except by a will then the provisions of the Hindu Succession Act 1956 apply. Under these provisions separate rules have been prescribed for male and separate rules have been prescribed for Hindu woman. Under Section 15 of the Succession Act 1956, the rules for the right to property of a Hindu woman are described.

Under Section 30 of this Act, any Hindu woman can bequeath her property anywhere but she does not leave any will, then in such a situation, according to section 15, the succession of her property is decided. According to Section 15 of the Hindu Succession Act 1956, in the event of death of a Hindu woman, her property is devolved to the following persons-

1)  Son, daughter and husband

2)  Husband’s heirs

3)  Mother and father

4)  To the heirs of the father

5)  The order of succession of the property of any Hindu woman to the heirs of the mother is the same as the order of succession to the property of a Hindu male.

The property is first devolved to son, daughter and husband. If the dying Hindu woman does not have a son, daughter and husband, in such a situation the property is devolved to the heirs of the husband. If the husband’s heir is also not available, then the property of the dying Hindu woman is devolved to her mother and father. If the mother and father are also not available, then the fourth heir is the heir to the father. If the father does not have an heir, in such a situation the fifth heir is the heir of the mother.

Certain features under this section, if any property is inherited by a Hindu woman from her parents, in the absence of the son or daughter of the deceased, the above heirs will be devolved to the heirs of the father and not to the order. Similarly, property received from husband or father-in-law will be devolved to the heirs of the husband if there is no son or daughter of the deceased. In this section, an attempt has been made to judge the property from which people get the property. The first succession is that of the son and daughters. If the son and daughter are not available, in such a situation, the property received in succession is devolved to those people from where that property is received by a Hindu woman.

For example, a Hindu woman has received a piece of land in succession from her father-in-law, now no child of this Hindu woman is available and there is also no objection to the child, in such a situation, the property obtained from the father-in-law does not belong to the husband. In the event of in-laws heirs will be devolved.

In the event of a Hindu woman receiving the property from the husband, the heirs of the husband will be devolved.

In the event of inheritance from her father, the heirs of the father will be devolved, but if a property is acquired by a dying Hindu woman herself, the rule for her property in such a situation would be that first of all the property. Succession will be devolved. After that, the second succession will be devolved, followed by the third answer will be devolved to the officers. The first heirs exclude the second heirs.

Under this Act, a Hindu woman’s son and daughters mean the son and daughter received from her womb and the sons and daughters adopted by her husband. If a Hindu woman has 2 sons and their two fathers are different, in such a situation, both her sons will get the property of the Hindu woman. This clause does not apply in such a situation if her step-son means that if her husband has given birth to a son or daughter from another woman. Under the Hindu Adoption Act, when a husband or wife accepts an adoption, the wife also agrees in such a situation, if a Hindu man has adopted a son, then that adopted son will have the same inheritance in the property of the Hindu woman. Who has a son born from his womb.

In the case of Laxman Singh v. Krupa Singh AIR 1986 Supreme Court 1616, it has been pointed out that as far as the step-son is concerned, he does not fall under the extension of Section 15 (1) (a). In the case of Kampo Bai v. Deviram 1982 Revenue Decision 14 Madhya Pradesh, it has been said that under section (a) of section 15 (1), the reference to the daughters and daughters of the daughters is from their own daughters. Her husband’s other wife’s sons and daughters are not included. Step sons will not come under the subdivision and step daughters will also not come.

The heir of a Hindu woman is firstly her sons, daughters and husbands but here the situation of husband is entangled. That is, sub-section 2 of section 15 provides that if a Hindu woman has inherited the property and has no son or daughter, then in such a situation and the property is devolved to the heirs of the same person. Property received in succession. For example if a woman inherits any property from the father in succession. The woman has no children and does not adopt any adoptions and dies intestate. Now in such a situation, the inheritance which she received will be devolved to the heirs of her father and not to her husband.  It simply means that the heirs of the party from whom the property is received in succession will be devolved only.

In Radhika Mehta v. Anurag Mehta 1994 (5) Supreme Court 761 it is stated that if the intestate Hindu woman had inherited the property from her mother and maternal grandfather, then the daughter of the deceased would inherit it and her husband in section 15 (2 ) Shall not acquire property in succession as per the provision of (a). According to the nature of this section, the husband will not inherit the property left by his wife in the condition where his wife held the property from her father. The husband will inherit the property in the same circumstances in which the property was either given by him to the wife or was earned by the wife herself.

In this article we have discussed the succession of property under Hindu Succession Act, 1956. If you have any query or you want an experienced civil lawyer for your property matter; call us on our number reflecting on our website or fill the query form. Our team of best civil lawyers will guide you. Our team of civil lawyers has vast experience and professionalism. They spend ample of time while researching, drafting. Our law firm has a team of experienced civil lawyers that works together to get fruitful results and decision of the court in their favor. Our Law firm is well known for handling civil litigation. Our civil lawyers provide best legal solutions to resolve the client’s problems. That is why Legalmax is distinguished from other legal firms.

1 2 3