Showing posts with label Hindu Law. Show all posts
Showing posts with label Hindu Law. Show all posts

Sunday, May 13, 2018

Complaint Of Domestic Violence Can Be Filed Even After Divorce: Supreme Court

A woman can lodge a complaint under the domestic violence law against the excesses committed by her husband even after the dissolution of marriage, the Supreme Court has said.

The top court refused to interfere with the order of the Rajasthan High Court which held that the absence of subsisting domestic relationship in no manner prevents a court from granting relief to the aggrieved woman.

The high court had passed the order while adjudicating a matrimonial dispute.

A bench of justices Ranjan Gogoi, R Banumathi and Navin Sinha dismissed the appeal against the high court verdict, saying it was not inclined to interfere with the order in the facts of the case.

It was contented that husband-wife relationship often ends on an acrimonious note and if the provisions of the Act were allowed to be used retrospectively, then it would further increase the acrimony and rule out the possibility of any compromise.

He said that legislature's purposive interpretation has to be kept in mind while interpreting any provisions of the law.

The bench, however, refused to agree and declined to interfere with the high court order in the facts of the case.

The high court had held on October 30, 2013 that the subsistence of marriage or domestic relationship was not a condition precedent for an aggrieved person to invoke the protection orders and other reliefs under the provisions of the Act.

"If the aggrieved person had been in domestic relationship at any point of time even prior to coming into the force of the Act and was subjected to domestic violence, the person is entitled to invoke the remedial measures provided under the Act,

The high court had said cited an example saying that even after the dissolution of marriage between the parties, if an ex-husband attempts to commit an act of violence such as entering the place of employment of the divorced wife, trying to establish contact with her or causing violence to her dependents or other relatives, she is not precluded from seeking protection orders under the law.

If the divorced husband attempts to dispossess the woman from the shared household or property jointly owned, she can approach a court for appropriate relief.



https://www.ndtv.com/india-news/complaint-of-domestic-violence-cruelty-against-can-be-filed-even-after-divorce-says-supreme-court-1851293

Tuesday, February 21, 2017

Marriage under Hindu law is ‘sacrament’, not contract: Delhi High Court

Marriage under the Hindu law is “sacrament” and “not a contract” which can be entered into by executing a deed, Delhi High Court has observed while dismissing a plea by a woman who had challenged an order refusing to declare her as the legally-wedded wife. The woman had approached the court seeking her appointment for job on compassionate ground after the death of her alleged husband, a former sanitation staff in a city government hospital, and a direction to the medical superintendent to release consequential benefits and allow her to join duties.

The high court noted in its judgement that the petitioner had contended that she had married the man by way of execution of a marriage deed in June 1990 without disputing the fact that he was living with his earlier wife, who had died in May 1994. “Since inception, the contention of the appellant (woman) had been that her marriage with the man on June 2, 1990 was performed by way of execution of a marriage deed and an affidavit. It is not disputed by her that the man had a living spouse on June 2, 1990 and she expired on May 11, 1994.

“Under Hindu Law, marriage is a ‘sacrament’ (solemn pledge) and not a contract which can be entered into by execution of a marriage deed. On June 2, 1990 the man was having a living spouse,” Justice Pratibha Rani said. The high court said the lower court had rightly held that the woman cannot claim the status of a legally wedded wife of the man on the strength of the alleged marriage and its order cannot be termed illegal. The woman had claimed she was the man’s widow and after his death, she had applied for appointment on compassionate ground after which she was offered appointment as ‘safai karamchari’ on temporary basis in the hospital.

Later, a show cause notice was served on her asking her to explain the legality and validity of her marriage with the man. She had replied that on the date of death of her husband in February 1997, she was his only wife. The woman’s plea before the trial court was contested by the Delhi government and medial superintendent of the hospital who said that she had misrepresented about being the legally wedded wife of the man. The court, in its verdict, noted that the trial court in its judgement had referred to the earlier order passed by the high court in which it was held that issuance of succession certificate in favour of the petitioner without impleading the legal heirs of the man was of hardly any value.

“It is settled legal position that in second appeal, high court cannot set aside concurrent finding of fact given by the courts below. The second appeal can be entertained only if a substantial question of law is raised. The rationale behind is that appreciation and reappreciation of an evidence must come to an end with the first appeal,” the court noted. “It has been consistent view that high court has no jurisdiction to entertain second appeal merely on the plea that another view is possible on appreciation of relevant evidence available on record,” it said.


http://indianexpress.com/article/india/marriage-under-hindu-law-is-sacrament-not-contract-delhi-high-court-4496819/


Tuesday, May 21, 2013

Dowry Death and Indian Families

In today’s Indian society dowry is like a norm, we see that people spend lavishly on marriages. The root cause of the problem starts from here, The parents of the bride fulfill all the wishes of groom’s family like spending lavishly on wedding, gifting cars etc. when the bride reaches her matrimonial home, The selfishness of groom’s family grows .Now they demand more things like household items, property etc. Not in the condition to fulfill the infinite demands of groom family, The Groom family starts to harass the newly wedded wife so much and so grave that she thinks it’s better to end the life than to live it. In the end the lavishly solemnized wedding ends into tragic death of the bride. The cause of death is not natural that is for sure, it may be due to poison, suicide, even hanging on the ceiling, burns.
 
This the most common story of all the dowry related deaths .For this common story there must be a common Law on different footing as that of murder and culpable homicide as the cases of murder and culpable homicide demands much greater evidence and are much complicated. The dowry death is covered in sec 304 B IPC which is:
 
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called" dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.- For the purposes of this sub- section," dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
 
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
 
Basic Ingredients:
 
1. There must be a death of the woman.
2. The death of the woman must be in un natural circumstances.
3. And there must be evidence that she was subjected to cruelty due to demand of dowry.
 
So there is a stark difference between section 299/300 and 304B as 299/300 has much wider scope and covers many motives, But sec 304B the main motive is Dowry due to which cruelty and harassment is performed on the bride and due to which she died.
 
Evidence in 304 B-
 
For the protection of harassed party the evidence act comes to rescue for a crime to come under the 4 corners of evidence act, The material evidence is cruelty and harassment on the bride.
 
113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.
 
Now due to this section the burden of proof shifts to defendants, now they have to show that they have not done cruelty and harassment in order to evade this section.
 
Unlike in murder cases there is always presumption of innocence, The section of murder has to pass through quite stringent tests than that of dowry death. In dowry related death those people who are involved in cruelty (relatives) are held to be liable for the dowry death.

Source: Nitish Banka

Monday, May 20, 2013

Hindu Daughter's equal rights in ancestral - coparcenory property

Since this is an area of profound concern these days, and I’ve been facing endless queries on this, here is a basic & overly simplistic layman’s view on the law as it was before 2005 and after it vis-a-vis daughter’s right in joint family/coparcenary/ancestral properties among Hindus in India.  
 
Concept of Joint Family in a nutshell
 
We all are aware of the concept of a Joint Family – wherein people related by blood/marriage descending from a common ancestor form a unit, live, work, worship together. This includes all sorts of people, sons/daughters (married, widowed or otherwise), mother, widows of sons etc. All these people have right to maintenance out of joint family properties and assets. 
 
The Coparcenary
 
Within this group there is a narrower group called the coparcenaory, with it’s constituents being referred to as the coparcenars have birth rights (ownership) in the joint family/ancestral properties, which they can get culled out anytime by a partition, they have the right to sell/gift/will away their share of the property, they also have the power to assail any wrongful transfer of property made by Karta (Karta, for those who arrived late is the eldest lineal member of the family, entrusted with task of managing the property, Karta has the power to even alienate the whole of property in certain circumstantial compulsions). 
 
BEFORE 2005
 
Now before 2005 only son, son’s son, son’s son’s son were coparcenars, with the daughters only having a right to reside in the property and get their marriage expenses defrayed out of the same. A son would acquire proportionate ownership in the property moment of it’s conception, but not the girls.
 
POST 2005
 
Post 2005 – now a daughter also would acquire ownership rights on the property from the time of her conception (provided of course she is born alive). She has the same rights of partition and power to deal with the property as she pleases, this right extends to seeking a partition and sale of the family home as well. Hence there is a complete parity in terms of rights.  However it would be profitable to remind ourselves that these rights extend to only ancestral properties (or joint family properties – are properties which people inherit from their paternal ancestors/property through into common hotch potch/property acquired by joint family efforts/accretions etc) and not separate properties (which include property earned by gift/will/acquired through purchase from own funds/acquisitions from own skill etc.) 
 
But there is a rider - The right to get your equivalent share of the property can be exercised only in cases where there has been no formal partition (partition either through court final decree or through a registered partition deed) before 20.12.2004. In case a partition has already been finalized before the said date, the right collapses. 
 
HOW TO ASSERT YOUR RIGHT ? FILING A SUIT FOR PARTITION  
 
The Daughters (married, widowed or unmarried) now can approach the civil court for seeking a partition from their brothers/family/father etc. Their right is equal. Once acquired a lady is free to deal with the property the way she likes and it becomes her absolute property and her children have no right during her lifetime. 
 
A Daughter can file a suit for partition, on which certain court fees is payable. This court fee depends on the value of her share in the property and has to be calculated as per court fee chart. 

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