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Anticipatory Bail for cases under section 498A of IPC
  • By: Adv. Kishan Dutt Kalaskar
  • Date: 11 Jun 2020
  • Family
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The paper today is concerned with: The matter of anticipatory bail under the India Penal Code (IPC) for offences registered under Section 498 A and Sections 3 and 4 of the Prevention of Domestic Violence Act. This paper discusses the tendency and likelihood of receiving anticipatory bail in such situations, and usually, the procedure one needs to follow if they are at the receiving end of prosecution under these sections.

In order to begin the objective of the paper, one needs to first understand the nature of anticipatory bail provided for under Section 438 of the Code of Criminal procedure (CrPC), which is an extension to the general provisions of bail, whereby a person, in anticipation of arrest may apply to either the District or High Court for a conditional bond such that in fulfilling these conditions that person may be arrested for the anticipation he has given before the court. It is important to note that anticipatory bail can be filed at any time during the pendency of the prosecution, as it was held in Sushila Aggarwal vs State of NCT Delhi (2018) 7 SCC 731that there is no set time limit on when an anticipatory bail can be applied for, and the petitioner of such a bail petition is allowed to file at any time during the prosecution, including but not limited to, even before the filing of an FIR, or registration of complaint. As held by the Supreme Court in Jitendrakumar Bhanukumar Rao vs State of Gujarat (2015) SCC Guj 3371, that even in situations where it may not be clear that the applicant might be arrested at the end of an investigation, he may file for anticipatory bail for the sole reason that there is a chance that the investigation might lead to an arrest in the end. With this in mind, one needs to look at the text of Section 438 of the CrPC to understand the nature of commitment one might expect when applying to the court for anticipatory bail.

This paper also deals with the intersection of this section in the CrPC with the DV Act. Specifically enacted to deal with the criminalization of violence against women in the domestic setting, more specifically, the definition of domestic violence under Sec.3, which includes more scenarios and covers more ground than Sec. 498a of the CrPC. In Sec.3 of the DV act, there’s no charge. Ultimately, all matters charged through the definition here need to be charged under the CrPC. On a cursory reading it shows us that it has a wider scope than that of Sec 498a, it includes mental, verbal and emotional abuse as a chargeable offence, further, it includes all acts that contribute to such abuse, either directly or indirectly, this extended definition allows for a larger number of situations to be covered and charged. More important is that this section differentiates dowry demands and abuse related to that, and economic abuse which has, for the longest time clamoured for recognition among criminology circles. Sec. 4 of the act, on the other hand, allows for reportage by persons other than the victim, and even encourages such reporting through the blanket immunity provided to the informant, and in the alternative, an option has been given to the abused to make any complaint in such matter through an Information Protection Officer, Who shall be designated to convey the same to the authorities, thus removing the societal taboo of reaching out to the police, and enabling the formation of a barrier of sensitization trained personnel between the police and the traumatized victim. Bear in mind that in the precedent discussed in this paper, all cases use a combination of charges under Sec. 3 & 4 of the DV Act and Sec. 498a of the CrPC, to enable the criminal sanction of the act to the broader definition under the DV Act.

The first thing one needs to keep in mind is that this section applies only to non-bailable offences, and application may either be made to the court of sessions or the High Court, thereby making anticipatory bail one of the few matters other than writ that fall under the original jurisdiction of the High Court. It is also interesting to note that the judge, among others, may choose to impose conditions to prevent the person from absconding, or in the alternative that he must be ready and available to be presented before the police for an investigation in the matter. The most important aspect of this section is this: That depending on the offence, the judge may prescribe such conditions as he may deem fit, and that power has been used liberally in matters relating to anticipatory bail under the Domestic Violence Act and Section 498 A of the IPC.

On the other hand, Section 498 A of the IPC has the following antecedents: While there is a general period of limitation of 7 years on all dowry-related matters, it shall also apply to this section. This section envisages two categories of accused’s: The husband and the relatives of the husband, and the section can be filed for one of two reasons illustrated in the sub-sections, that there has been violence such that it has driven the bride to suicide, or nearly so and that such mental cruelty has been meted out for demand of an illegal sum of monies and property by the husband and his family. In both these situations, a complaint may be lodged by either the victim herself, the protection officer, or any person that suspects that acts of domestic violence are taking place (Sec. 4 of the DV Act).

This paper deals with the confluence of these three statutes that anticipatory bail may be granted in a matter of domestic violence, and in what situations the court might be more willing and lenient to an applicant.

 

Court Precedent Analysis

The courts have generally shown leniency in granting anticipatory bail in cases registered under Section 498A, in the words of the Kerala High Court, and this is because it might allow the parties to reconcile the matter out of court, or through other civil remedies, rather than resort to the irrevocable nature of the criminal remedy sought here. This reasoning played an instrumental role in granting bail in the matter of G.R. Deepesh Kumar v State of Kerala where it was established in the course of the investigation that the applicant husband had been the sole perpetrator of the purported violence in the matrimonial household. Yet, this is not to say that in all situations, the court will be equally lenient. In the matter of in Re: Govind Ram Agarwala and Others2015 SCCOnline Cal 4298the court took a similar stance, but the matter was examined in greater detail, where the complainant wife had already reported the abuse suffered, and that the parents of the accused have been granted anticipatory bail and a case was made that the husband may also be granted the same. The court in this matter has made note that the accused has been given multiple chances to reconcile the matter amicably and for that reason, the anticipatory bail has been granted, and in the current petition, as it was made abundantly clear that the parties are in no position to compromise, the previous orders will have to be withdrawn. From this, it can be seen that:

  1. Courts are usually partial in granting anticipatory bail in such matters.
  2. If the parties are either already in the process of, or have made representations to the effect of dissolution of the domestic relationship/ settlement of the dispute, the court shall be all the more reluctant to reject a petition for anticipatory bail.

In such cases where there is prima facie evidence that wrongdoing has occurred, and no settlement seems viable, the court has chosen in the matter of In Re: Anjanaba Bhattacharya to grant anticipatory bail with conditions antecedent, and this case is peculiar because the petitioner has not attended to the notice for investigation sent by the officer in charge, the court reasons that, the petitioner shall be granted anticipatory bail conditional on complying with the investigation. This measure by the court can be seen as both favouring the applicant for bail, and at the same time, ensuring that the investigation for the complaint lodged under Sec. 498 A occurs smoothly.

It is also noted that the court has granted anticipatory bail in those situations where the petitioner is apprehensive of arrest in a matter for which the FIR may not have been filed yet. This is a rare phenomenon since courts tend to wait until a complaint has been filed to evaluate the situation in a domestic relationship and gauge the situation accordingly.As mentioned in Dr Lokesh B.H v State of Karnataka Cri. P. No. 5962/ 2015.

On the other end of the spectrum are cases like S. Jayalakshmi v State of Kerala, where the court denied anticipatory bail despite the primary applicant (husband) having already received bail in this case since the secondary accused were in immediate control of the domestic situation of the victim, so they were not granted anticipatory bail. This case is a good example of the perception of the judiciary on the part of matters of domestic violence, as a petitioner for anticipatory bail, one is in a favourable position to be granted the bail as long as the relationship between the parties hasn’t deteriorated to such an extent that in the opinion of the court there can be no settlement between the parties.

It is important to note that there are no antecedents to filing for anticipatory bail, and the only requirement for filing is an apprehension of getting arrested, no analysis of the guilt, or the merits of the complaint is encouraged. Sagarmal and Anr. V State of Rajasthan and Others (1998) 3 RLW 1970, where the merits of the matter have been excluded from discussion in granting anticipatory bail, and merely the fact that the sessions court has refused the same played a significant role in determining the order of the High Court.

On the other hand, it does not mean that no reference shall be made to the situation of the victim and the applicant, it is imperative to understand that even in the general tendency to grant anticipatory bail, the nature and gravity of the alleged offence play an important role in the decision of the courts, as this can be seen in the matter of Abdul Saleem Abdul Kareem Shaikh v State of Maharashtra and Anr. 2020 SCC Bom 512. In this case, it was held that since the allegation against the accused is more concrete in nature, in comparison to the general allegations of cruelty against the rest of the accused’s family, he cannot be granted anticipatory bail.

 

Conclusion and Pointers

Thus, it is necessary to note that while it is possible to file a petition for an anticipatory bail even before the complaint has been registered not many instances of the same have been observed in matters of Domestic Violence. From the discussions in this paper, and the precedent of Surjit Kaur Chopra v State and Anr, as decided in the Delhi High Court, the following pointers need to be kept in mind while filing any litigation for an anticipatory bail in general, or specifically in matters of domestic violence:

  1. In general, courts show partiality to the applicant if there is a chance that the matter can be settled privately outside the court.
  2. Courts do not necessarily grant anticipatory bail on the sole fact that the allegations maybe false.  The main consideration here is the balance of convenience.
  3. In making an unofficial complaint, or representation in the matter of pre-arrest bail, one should follow Rule 2 of the Domestic Violence Act, and keep track of the domestic transactions that gave rise to the claim. This is important in asserting the veracity of claims made in the complaint, and petition for bail.
  4. Parties should usually take the court upon the offer of settling the matter out of court since they show preference to extending lenient terms to exacerbate the out of court settlement.
  5. Making an anticipatory bail before the complaint has even been made is not very wise since, in precedent, courts depend on the complaint document to determine the fitness of the matter for allowing bail.
  6. Since no other documents are available to substantiate the case of the petitioner, it is tough to justify, only one case where such allowance was made and that too after an informal complaint has already been made with the state Women's’ Cell.

In summary of the above-discussed cases, it can be said that in more cases than not the courts have granted anticipatory bail, there is no pattern or reasoning as to when anticipatory bail can and cannot be granted. Especially in domestic violence cases, it seems that the courts make these decisions on the basis of the complaint received by them and the gravity of allegations therein.

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Prenuptial Agreements

By: Adv. Kishan Dutt Kalaskar Family 24 Apr 2020

A prenuptial agreement is an official document which is signed by two individuals before getting married. The primary purpose of a prenuptial agreement is to settle financial matters in advance. The agreements are used to separate the personal debts and assets of one individual from his/her future spouse. This type of agreement includes the provisions relating to the division of properties, investments, alimony and any other monetary and possession-based negotiations. The introduction of the prenuptial agreement is a foreign concept. In India, marriage is considered as a sacrament, and hence the concept of the prenuptial agreement is not welcomed in the Indian society. The prenuptial agreement does not have any specified format. The content of the prenuptial agreement differs from agreement to agreement, as it depends upon the spouses. The entire concept of a prenuptial agreement is complicated in India. The main purpose of the prenuptial agreement is to decide the outcome of finances and personal liabilities in the event of a failed marriage.

Are prenuptial agreements valid and enforceable in India?

  • The validity of prenuptial agreements under the Marriage Laws:

The prenuptial agreement provides full disclosure of the financial status of both the individuals who are about to get married in future. It pre-determines the quantum of alimony to the wife and children in case if the marriage fails in the future. The prenuptial agreement also provides a provision that is related to pre-negotiated custodial rights of the children in case if there is dissolution/separation of marriage. Under the Indian Marriage laws, a prenuptial agreement is neither legal nor valid as the Indian society does not consider marriage as a contract. In India, the prenuptial agreements do not find its social acceptance as the society treats the marriage as a spiritual bond between two individuals (spouses).

In India, the matrimonial laws are governed by the Personal Laws of the individual in a marriage. As there is no Uniform Civil Code which governs marriages in India, each religion has its own set of rules relating to marriages. There is diversity in the way marriages are dissolved, custodial rights of children, and other issues. At present, there is no law which deals with legality or enforceability of pre-nuptial agreements in India. However, as there is a Uniform Civil Code in Goa, it recognizes pre-nuptial agreements. The general view relating to the prenuptial agreement is that it merely indicates the intention of two individuals who are about to get married, and such an agreement cannot be legally enforced in India. One of the primary reason of non-validity of prenup agreements is that, in India, a marriage is not considered as a Contract or agreement between two parties rather it’s a spiritual concept. Therefore, prenup agreements are not socially accepted, and under the various marriage laws, they are not legally enforceable or legally valid.

  • The validity of prenuptial agreements under the Contract Act,1872:

To make a prenuptial agreement enforceable in the court of law, it must be a valid contract under the Indian Contract Act 1872. In case if both the spouse mutually agrees to the provisions mentioned under their prenuptial agreement and is signed with the free consent, then the Court can take cognizance of such an agreement. If the consent is caused by any coercion, undue influence, fraud, misrepresentation and mistake, then it is not considered as free consent. To legally enforce the prenuptial agreement, the agreement must be free from ambiguity, and the clauses should be fair to both the spouses.

It is also essential to understand that for a prenup agreement to be legally valid under the Contract Act 1872 should be free from clauses which oppose to public policy. Despite fulfilling the requirements of a legal contract under Section 10 of the Indian Contract Act(ICA),1872, the Indian Courts have not been providing legal enforcement to the prenuptial agreements on the basis that they are unlawful as they oppose the public policy. According to Section 23 of the Indian Contract Act, any contract which violates the public policy is deemed to be unlawful and invalid. The clauses in the prenuptial agreement which relates to “separation clauses”, and “no child clauses” violates Section 23 of ICA making the contract void. On the other hand, both these clauses previously mentioned are essential and must for a prenuptial agreement. However, the Indian Courts have not defined what exactly is “public policy”, and therefore the stability of such agreements is yet not balanced.

The Ministry of Women and Child Development had convened a meeting in March 2019 with an intention to raise a question on whether the prenuptial agreement should have a legal stand in India. However, there was no precise determination in that meeting.

Case Laws

1. Tekait Mon Mohini Jemadai Vs Basanta Kumar Singh

Calcutta High Court - 20 March 1901

(1901) ILR 28 Cal 751

In this case, there was a prenuptial agreement between Sri Rai Basanta Kumar Singh and Tekait Mon Mohini Jemadai. The provisions of the pre-nuptial agreement state that the husband will never be at liberty to remove his wife from the parental house. The Hindu law imposes a duty upon the wife to reside with her husband wherever he may choose to reside. If there is any agreement which states that the husband will not be at liberty to remove his wife from her parent's house to his own house and if such an agreement is permitted then it will defeat the Hindu Law. The Court held that the object of the agreement is unlawful and therefore, such an agreement is void in the eyes of the law. Hence, the Court refused to uphold the validity of the pre-nuptial agreement.

2. Krishna Aiyar Vs Balammal

Madras High Court - 6 May 1910

(1911) ILR 34 Mad 398

The agreement was between Krishna Aiyar and Balammal. The agreement was entered by the husband and wife after marriage. The agreement states the provision relating to the separation of the husband and wife. The Courts applied the Hindu law as the parties were Hindus and Brahmans to determine their marital obligations. The main question which arises was whether, under Hindu law, any agreement between husband and wife to live apart from each other is valid. The Court held that the agreement is deemed to have been forbidden by the Hindu Law. Also, it is against public policy, and therefore such an agreement is not enforceable. Hence, the agreement was declared invalid.

3. Commissioner of Income-Tax V/s Smt. Shanti Meattle

Allahabad High Court - 27 December 1971

1973 90 ITR 385 All

The husband and wife agreed to live apart after their marriage, and an agreement for separation was executed between them on the 16th September 1954. Under the agreement, the wife was given an option to live separately from her husband free from marital control and authority. It also states that the wife and husband shall not molest or interfere with each other or bring a suit for the restitution of conjugal rights against each other. The agreement has the provision for the maintenance of Rs. 2,000 per month to his wife and her two children.While deciding the validity of an agreement between the parties to live apart, the High Court held that such an agreement is unenforceable because it has brought to an end all the marital rights which a husband can exercise over his wife.

4. Sunita Devendra Deshprabhu V/s Sita Devendra Deshprab

High Court of Bombay at Goa - 4th October 2016

2016 SCC Online Bom 9296

On 7th May 1951, Raghunathrao Deshprabhu and Sita Devendra Deshprabhu had entered into a prenuptial agreement. The prenuptial agreement states the provision relating to the separation of assets. On 10th November 1987, Raghunathrao Deshprabhu died. After filing suit, Sita Deshprabhu also died. It was contended that there were no pre-existing rights in view of the prenuptial agreement. It was submitted that the prenuptial agreement between Raghunathrao and Sitadevi shows that they had agreed for the regime of separation of assets. Hence, in this case, the Court considered the Prenuptial agreement for deciding the issue relating to the separation of assets among the parties. However, there was no point relating to the validity of the prenuptial agreement in the judgement.

Conclusion

In India, prenup agreements are still considered a taboo, unlike the other western countries. Its validity and constitutionality are unstabilised, and no accurate decisions have been made yet. From the above-mentioned case laws, it can be concluded that there is no landmark judgment which states that the prenuptial agreement is valid in the Court of law. However, to make the prenuptial agreement enforceable, it must be a valid contract under the Indian Contract Act 1872. Such an agreement will be legally binding only when there is mutual and free consent of both the spouses. Also, the clauses mentioned under the prenuptial agreement must be fair and clear. It is advisable to have a prenuptial agreement as it provides hassle-free litigation in the event of failed marriage like a divorce, judicial separation, etc. In the prenuptial agreement, since the division of assets is done before the marriage, it becomes simpler to implement such an agreement in case if the marriage fails in future. However, it is advised to consult a lawyer before drafting a prenuptial agreement for clarity and to avoid ambiguity.

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Hindu Undivided Family (HUF)

By: admin Family 17 Feb 2020

The HUF is an Indian form of business organization that is primarily used for the Joint Hindu Family Business's, governed by the Hindu Law.

It is a body consisting of people descended from the same ancestral head, including the wives and daughters of the male descendants who live together.

The size of the HUF is continuously fluctuating. It increases with the birth of a member in the family and decreases on the death of a member of the family. For the formation of the HUF, one does not require to submit any documents, the admission of the member of the HUF is by birth.

Hence, even minors will be a part of the HUF.

The essentials of HUF are:

  • Hindu, Jains, Sikhs and Buddhists shall be considered Hindus for the purpose of this definition.
  • There should be a family, i.e. a group of people more than one.
  • The family should be undivided, i.e. living jointly and having a sense of commonness among themselves.
  • Lastly, there must be some assets or ancestral property that they have inherited or will inherit.

Who is a Karta?

The eldest member of the family will be the head of the Joint Family. He is known as the 'Karta', and he is the main person responsible for the business and finances of the family. At the death of  Karta, the next eldest member shall become the Karta of the HUF.

Who is a Coparcener?

The Hindu Coparcenary is a narrower body within the HUF.  These are the individuals (known as the 'Coparcener') who acquire an interest in the joint family property by their birth.

Advantages and Disadvantages of HUF

Advantages:

  • Several exemptions can be claimed by the HUF in its income tax returns. A HUF is taxed at the same rate as an individual.
  • An adopted child shall also become a member of the HUF.
  • The joint family has a lot of scope of disagreements and conflicts due to a difference in opinion, but since the Karta has the ultimate and absolute power, there shall be effective management.
  • The existence of HUF is perpetual. The death of the Karta will not affect the workings of the HUF as the next eldest member will resume the position of the Karta.
  • There is a constant balance between the powers and liabilities under the HUF. The members and the coparceners do not have control over the management of the HUF, and hence, their liability is limited only to their share in the property. The Karta has total control over the management and therefore is entirely liable for the HUF businesses.
  • The trust amongst members ensures overall cooperation since all the members of the HUF are relatives and have a certain sense of loyalty towards each other.

Disadvantages:

  • Since the HUF does not accept members other than family members as part of the HUF, it is challenging to get additional capital and therefore, the scope of the business is hampered.
  • Due to the unlimited liability faced by the Karta, he may not be able to take challenging and risky business decisions in favour of the HUF.
  • The Karta may be wrongfully held liable for the actions of the other members of the HUF.
  • Conflicts may arise in the family due to the dominance of the Karta.
  • The Karta may not possibly be the most qualified person to take on the business of the HUF.
  • Since every member has some right on every asset of the family, the common property of the HUF cannot be sold without the consent of every member involved. Hence, the partition of the HUF is even more complicated than opening a HUF.

Currently, joint families are losing their importance as there are several cases wherein members of the HUF are fighting over property.

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Intestate Succession

By: admin Family 12 Feb 2020

More commonly, the term succession means inheritance. After the death of a particular person, succession follows. The Constitution of India deals with the personal laws and areas like marriage, divorce, partition, succession, adoption, intestacy, etc. via Entry 5 in List III. Therefore, either the State or Centre is competent to legislate on areas falling under the personal laws. The Hindu Succession Act states the rules relating to succession applicable to Hindus, Sikhs, Buddhists, Jains etc. It extends to the majority of the Indians. In the case of Muslims, there is the Sharia Law, which is applicable in case of inheritance or Succession. Whereas, in case of Christians and person of other religion who are not covered by the Hindu Succession Act and the Sharia Law comes under the Indian Succession Act, 1925.

In India, due to its dynamic and diverse nature, it is found that Succession is a very tactful issue. It can be classified into two ways, i.e., testamentary succession - one with a will, or intestate succession - one without a will. Will is a declaration which expresses the desires of a person regarding his estate and transfer of the same after his death. An individual is said to have died intestate when he has not disposed his assets under a will, or the settlement under the will is incapable of taking into account the invalid bequest. Intestacy can take place partially or totally.

If a person dies intestate, then the distribution of assets is as per the provisions of the Indian Succession Act. Many complexities arise in case of more than one heir to claim a right on the property.

Who can Claim a Property?

In order to claim the property, one requires a succession certificate or a letter of administration issued by the court. Letter of administration is granted by a competent court to distribute the assets among the heirs. It can be acquired by filing a petition in the Court, whereas succession certificate is issued to a person who claims the authority to acquire debts, securities and movable assets.

Intestate Succession Among Hindu’s:

In order to consolidate and amend, the laws relating to intestate succession among Hindus, the Hindu Succession Act, 1956 was passed. It applies to all the persons who practice the religion or who are defined as Hindu's, i.e. Buddhists, Jains and Sikhs under the legal regime. The act was amended in the year 2005.

The provisions of this Act states that if a Hindu male dies intestate, then the following persons can make a claim:

First Claim: Class I legal heirs. Class, I legal heirs include mother, spouse and children. When any child dies, then their children and spouse get an equal share. They have equal rights to their assets.

Second Claim: Class II heirs can claim in the absence of Class I heirs. Class II heirs include father, living children's grandchildren, sibling, sibling's children etc.

Third Claim: The third claim can be made in the absence of Class I and Class II heirs. Moreover, that claim can be made by Agnates. They can be defined as the distant blood relatives of male lineage, i.e. of the father's side.

Fourth Claim: The fourth claim can be made in the absence of Class I, Class II heirs and Agnates. The Cognates can make the fourth claim. They can be defined as the distant blood relatives of female lineage, i.e. of mothers' side.

The following person can make a claim, in the case of a Hindu female:

  • The sons, daughters and husbands can make the first claim.
  • The Second Claim can be made in the absence of first claimants; the heirs of the husband can make a claim.
  • The Third Claim can be made in the absence of first and second claimants; the mother and father can make a claim.
  • The Fourth Claim can be made in the absence of the claimants mentioned above, the heirs of the father.
  • The heirs of the mother can make the Fifth Claim in the absence of heirs of the father.

Intestate Succession Among Muslim

When a person is governed by the Mohammedan law and dies intestate, then the sharers and residuary can make a claim. Sharers are the heirs who have a specific share within a certain limit. Whereas residuaries are those who acquire the remainder of the property. In the absence of shares and residuaries, a distant kindred can claim the deceased property.

Intestate Succession Among Christian

Section 32 of the Indian Succession Act states that the legal heirs of residuary are husband, wife or the kindred of the deceased.

It is seen that various complications and consequences arise due to the intestate succession, to avoid such complications India should adopt an estate planning as it helps to avoid disputes within the family.

To avoid the consequences and complications of intestate succession, the people in India should adopt the planning of the estate. It has multifold benefits that are to avoid any dispute within the family. To guarantee the smooth transition of assets from the deceased to the heirs promotes better tax planning, protects the wealth of the deceased, etc.

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Legal framework for the Elimination of violence against Women in India

By: admin Family 22 Nov 2019

The Indian Constitution grants equality to women by empowering the state to adopt measures of eliminating discrimination and violence against women in India. The constitutional articles that favour the growth of women help to neutralize the cumulative socio, economic and political disadvantages faced by them in our society. The fundamental rights ensure equality before the law, equal protection of the law, prohibits discrimination and also guarantee equality of opportunity to all citizens. The Constitution guarantees all citizens the fundamental right to live in peace and harmony through Article 12 to 35 of the constitution.

To mandate and uphold the constitutional provisions, the state has also enacted various legislative measures to ensure equal rights, to counter social discrimination and various other forms of violence. Women have been the victim of serious crimes such as Rape, Murder, Robbery, Cheating, etc. All the crimes which are directed against the women are characterized as ‘Crime against women’.

The Indian Penal Code includes the legal provision for several crimes against women in India. The crimes against women are classified into two categories namely:

  • Crimes under IPC
  • Crimes under special laws

 

A few changes in the legal system of India include provisions such as strict laws regarding sexual assault, creation of fast track courts for prosecution against severe crimes like rape, murder, etc. Recent cases of violence against women like Unnao rape case and Kathua Rape case have also led to certain legislative changes. Following are the laws that help to eliminate violence against women:

Dowry Prohibition Act, 1961: According to the provisions mentioned in the Act, taking or giving of dowry is to be penalized. Over the centuries, the lack of independence of women and taboo towards divorce resulted in bride burning for the demands of dowry at the time of marriage.

Indian Divorce Act, 1969: The act allows the dissolution of marriage, mutual consent, nullity marriage, restitution of conjugal rights if any violence is caused against the women after her marriage.

The Immoral Traffic (Prevention) Act, 1956: The act is enacted to combat trafficking and sexual exploitation of the women and girls for commercial purpose. The act provides the legal consequences of the criminal act which helps to eliminate the violence against women.

Protection of Women from Domestic Violence Act, 2005: The act provides the effective provisions for protecting women against violence occurring within the family and the matters connected therewith. The act helps to protect women from any sort of domestic violence against women.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: The Act applies to all women employees to get protection against sexual harassment at workplace. The act came into effect after the landmark judgement of Vishaka &Orsv. The state of Rajasthan.

The Criminal Act (Amendment) Act, 2013: The act provides the amendment of the Indian Penal Code, Criminal Procedure Code and Evidence Act. The act works on the major amendments of the sections related to offences said in the above-mentioned acts. It recognizes the broad range of sexual crimes of which women fall victim. In Nirbhaya case, stalking was added as an offence under section 354 D of the Indian Penal Code under the amendment of the Criminal Act, 2013.

The Indian Penal Code, 1860: The Indian Penal Code mentions and explains the sexual offences against women,which encompasses the offences such as rape (Section 376), gang rape (Section 376 D), outraging the modesty of women (section 509), disrobing a woman (section 354B), Voyeurism (Section 354 C), etc. along with the punishment for those crimes.

The Indian Evidence Act, 1872: Section 114 of the Indian Evidence Act defines the presumption of absence of consent in the prosecution of rape. The section helps to decide the cases relating to rape as they are mainly dependent on the consent of the victim in the act.

 

Government Initiatives For Women

The Indian Government has implemented various policies, laws, programs to eliminate violence against women. The Government has established the statutory body with an intent to monitor all matters relating to the legal and Constitutional safeguards provided for women and to eliminate the violence against them. The Statutory body; namely, the National Commission for Women, practice to review the existing legislation to amend it whenever it is necessary in order to eliminate violence against women. Also, in 1992, the 73rd Constitutional amendment was passed to ensure and allot one-third of the total seats for women in the elected offices.

In 2001, the Department of Women and Child Development had prepared a “National Policy for the Empowerment of Women” The goal of this policy was the development and Empowerment of Women. The objective of the policy was as follows:

  • To create a positive environment for the social and economic development of women.
  • Equal access to participate in the social, economic and political life of the nation, equal access to health care, quality education, employment, equal remuneration, health safety, social security, etc.
  • Strengthening legal systems to eliminate the violence against women
  • Development in the elimination of discrimination and all forms of violence against women and girl child
  • Changing the attitude of society and community practices by the active participation of both men and women

 

Government has initiated and encouraged the changes in the personal laws to inculcate the provisions relating to marriage, maintenance, divorce, etc to eliminate discrimination. Also, the evolution of property rights of women in a patriarchal society has contributed towards equality. The existing laws are reformed and new laws are enacted to ensure the quick justice to the women.

 

Effective Implementation Of Legislation

The laws and policies have initiated strict enforcement of all relevant legal provisions and speedy redressal of grievances. Also, the measures have been implemented to prevent sexual harassment at the workplace, crimes against women, protection for women workers, etc by strict enforcement of laws. The investigation, detection and prosecution of the matters are reviewed at the Central, State and District level. The women cell in Police station, family courts, legal aid centres, counselling centres and Nagar Panchayats are strengthened to eliminate the violence against women.

 

Conclusion

Unfortunately, the cases of violence against women in India are rising despite the implementation of several laws, policies and legal frameworks to eliminate violence against women. The indicators of violence against women are a reflection of the structural and institutional inequality of women in society.

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International Day for the Elimination of violence against Women

By: admin Family 22 Nov 2019

The United Nations General Assembly has designated November 25th as the International Day for the Elimination of violence against women.

Women's rights activists have observed November 25th as a day against gender-based violence since the year 1981. This date was designated to this cause in order to honour the Mirabal sisters, three political activists who were brutally murdered in the year 1960 by an order by the country’s (Dominican Republic) ruler, Rafael Trujillo. On 20th December 1993, the General Assembly adopted the Declaration on the Elimination of Violence against Women, paving the path towards eradicating violence against women and girls worldwide.

Finally, on 7th February 2000, the General Assembly officially designated 25th November as the International Day for Elimination of Violence Against Women, they invited world governments, international organizations as well as NGOs to join hands and organize activities designed to raise public awareness of the issue every year on that date.

 

Violence Against Women

Violence against women takes various forms and affects every society. Violence against women and girls is a form of gender-based violence. Violence against girls and women is among the most widespread and devastating violations of their human rights, some cases of these violence’s can be narrowed down to:

  • Rape
  • Trafficking
  • Slavery
  • Domestic Abuse
  • Female genital cutting
  • Early Child marriage

The UN general assembly in its Declaration on the elimination of violence against women defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”  The brutal psychological, physical or sexual harm causes severe health conditions that affect women at all stages of their life.

As stated in a WHO report noted that every 1 in 3 women is experiencing physical and/or sexual violence in their life. However, unlike an illness, perpetrators still choose to commit the crime of violence, when they still have an option to stop. Violence is not inevitable, and it can very well be prevented. But it’s not as straightforward as eradicating a virus. There is no vaccine, medication or cure. And there is no one single reason for why it happens.

 

Importance Of Elimination Of Violence

One peculiarity of gender-based violence is that it knows no economic or social boundaries and affects women of all socio-economic backgrounds, this issue needs to be addressed in both developed and developing countries.

This issue is not only devastating for survivors of violence but it also deeply affects their family members. Apart from this, one other problem is the high social and economic costs.

This violence leaves survivors with long-term physical and psychological trauma; and is used with terrifying effect in conflict settings, with women as the primary target.

Violence is not just limited to women, it also affects them in their tender age also. It is critical that girls are safe in school and colleges. Educating girls is crucial for the eradication of global violence. When societies don't value girls and their futures, entire communities suffer and generations are mired in poverty.

 

Conclusion

The UN Secretary General’s ‘UNiTE’ plans to End Violence against Women through their campaign (UNiTE campaign), managed by the UN Women, is a multi-year effort that aims at preventing and eliminating violence against women and girls around the world. It calls on the governments, civil societies, women’s organizations, the media, the private sector, young people, and the entire UN system to join forces against this violence and also in addressing the global pandemic of such violence against women and girls.

The elimination of violence against women and girls is not a short-term goal. It requires most coordinated and sustained efforts from the world government and people. Showing that these efforts will yield the required results is the best tribute to survivors of this violence.

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Family Courts in India

By: Adv. Jayatinn B Laalwani Family 30 Oct 2019

In India, a marriage is considered to be very sacred, but with the changing times, it has become a subject of great judicial scrutiny. People of different religions, as well as traditions, are regulated by a diverse set of personal laws that relate to family affairs. Prior to 1984, all family matters were resolved by the ordinary civil court judges who used to look after the recovery matters. In 1984, the family Courts Act was passed and came into force. The main objective of the act was to take family and marital disputes out from the overcrowded and traditional courts of law and to bring them in the sympathetic surrounding. Matrimonial litigation is a traumatic experience in the lives of partners and their children. The aim was to conciliate between the estranged family members and not in confrontation.

 

Objectives:

From 1955, when the Hindu Marriage Act was passed, till date, several amendments are made to liberalise the grounds for divorce and many other family issues. The process of settling the matrimonial disputes includes divorce, judicial separation, maintenance, settlement of property, etc. which are time-consuming and expensive.

To achieve the objectives, the government is put under obligation to establish family courts mainly in the cities and towns as the population of cities and villages exceeds one million. However, the state government may also establish family courts wherever it feels necessary. As per the Family Court Act, the state government can consult their respective high courts and specify the local limits of the area, where family courts can be established.

 

Where should the divorce petition be filed?

It states that every petition under this Act, shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction, the marriage was solemnized, or the respondent resides at the time of presentation of the petition, or the place where parties to the marriage last lived together, or the place where petitioner is residing at the time of submission of petition, in case if respondent is at the time, residing outside the territories to which this act extends, or has been heard of being alive for a period of seven years or more by that person who would naturally have heard of being alive.

In case the wife is the petitioner, she can file a divorce petition at the place where she resided at the time of presentation of the petition.

 

Jurisdiction of Family Courts:

Section 7 (1) and (2) of the Family Courts Act of 1984, describes the kind of disputes over which the family court has the jurisdiction. It states that subject to other provisions of this act, a family court shall have and can exercise the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force with respect to suits or proceedings. A family court shall be deemed to exercise the jurisdiction under such law, to be a district court or as the case may be any subordinate civil court in the area to which the jurisdiction of Civil Courts in the area to which jurisdiction of family court extends.

The suits and proceedings referred in the above-mentioned section are suits and proceedings of the following nature between the parties to the petition:

  • For a decree of nullity of marriage (declaring the marriage to be null and void, or as the case may be) or restitution of conjugal rights or judicial separation or dissolution of marriage.
  • For the validity of a marriage or as the matrimonial status of the person
  • For the property of the parties or property of either of them.
  • For order or injunction in the situation arising out of a marital relationship.
  • For the declaration as to the legitimacy of any person.
  • For maintenance
  • For guardianship of the person or the custody of, or access to the minor.

 

Subject to the other provisions of the act, the family court also exercises:

  • The jurisdiction is exercisable by the magistrate of the First class relating to the order for maintenance of wife, children and parents.
  • Any such jurisdiction that may be conferred on it by any other enactment or amendment.

 

Territorial jurisdiction:

The territorial jurisdiction of the family court is limited to that of a district court as per the notifications released by the state government with the consultation of High Court. The State government has the authority to reduce or increase its territorial limits from time to time, depending on the factors and circumstances of the matter. The state government and High Court can confer the jurisdiction only to a limited area.

 

Jurisdiction for property dispute matters:

As per the Family Court Act, 1984, section 7 (c) deals explicitly with the issues related to the property disputes of the parties to the marriage. The conflict that arises after the decree of divorce is passed. To deal with the property matter of the parties of the marriage, the family court should exercise its jurisdiction by satisfying two conditions:

  • The property dispute must be between the parties to the marriage only
  • The dispute should be in respect to the property of either of the parties.

It should be noted that the family court has no jurisdiction to deal with the property matters between the members of the joint family.

The SC in K.A Abdul Jaleelvs T.A. Shahida stated that with respect to division bench in a matter arising out of a preliminary issue on the question of jurisdiction held that the dispute over the properties of parties to marriage could not be confined to the parties to a subsisting marriage.

 

Jurisdiction as per subject matter:

All matrimonial disputes and disputes relating to maintenance under section 125 of CrPCis adjudicated under the jurisdiction of a particular district. The family court also exercises the jurisdiction in respect of suits or proceedings between parties to the marriage for the decree of nullity of marriage, restitution of conjugal rights, dissolution of marriage, judicial separation, validity of marriage, guardianship, custody and access to minor, legitimacy of any person. Family matters are to be viewed from a different perspective. Family Court seeks to promote conciliation in family matters.

The SC in Bhuwan Mohan Singh vsMeena&Ors held that family courts are established for the conciliation procedure and to deal with family disputes in a speedy and expeditious manner. Delay in adjudication by family courts is against the human rights and dignity of an individual.

 

Jurisdiction of High Court:

The jurisdiction of the district court was transferred to the family court as per section 7 of the Family Court Act. But the legislation did not clearly exclude the original matrimonial jurisdiction exercised by High Court. This clause of the Family Court Act led to considerable confusion and ambiguity during the initial phase and became contradictory judicial interpretation.

 

Overriding effect of the Family Courts Act on other laws:

As held by SC in BalramYadavvsFalmaniyaYadav, the section 7 (1) explanation (b) states that  a suit or proceeding declaring the validity of both marriage and matrimonial status of a person within the exclusive jurisdiction of family court, under Section 8, all those jurisdictions covered under section 7 are excluded from the purview of the jurisdiction of Civil Courts.

In case a dispute is observed on the marital status of any person, a declaration in that regards has to be sought only before the Family Court. Section 20 of the Family Court Act, 1984 also endorses that this act shall have an overriding effect on other laws.

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Inheritance Law in India

By: Adv. Jayatinn B Laalwani Family 20 Nov 2019

Inheritance means Succession, succession follows the death of a person. Inheritance of property means the passing on property, its title, debts, rights and obligations to the other party upon the death of an individual. The term inheritance is referred to whatever an individual receives upon the death of the relative according to law whichever is applicable when no will is present. Inheritance is the integral component of the family. It is the process of passing the material property from one generation to another. The transmission in inheritance is regulated and governed by specific laws in India. The law of testamentary or inheritance can be easily segregated in terms of religions.

 

Laws Related To Inheritance

 

The Hindu Succession Act was passed in the year 1956 by the parliament to amend and codify the laws relating to the intestate. The Hindu Succession Act was established to assure equal inheritance rights to both son and daughters. The Act states, every Indian is entitled to an equal share on inheriting the property. The Act applies to all Hindus, Sikhs, Buddhists and Jains. It plays an important role in the process of dealing with the inheritance of property. In India, inheritance or how the property is to be distributed is determined by the law of succession. In 2005, the Hindu Succession Act was amended by clarifying the right of women in dealing or disposing of the property as per her will.

The governing law applicable to Parsis for the intestate succession is the Indian Succession Act 1925 under section 50 and 56. Also, the governing law applicable to Christian and Jews inheritance is governed under section 31 to 49 of the Indian Succession Act, 1925.

Laws of succession governing Muslims in case of non-testamentary succession is the Muslim Personal Law (Shariat) Application Act, 1937. And if any Muslim has died intestate, then the issue of an intestate is governed under the Indian Succession Act 1925. Law of succession in case of interfaith marriages is governed under the Special Marriage Act, 1954. The Indian Succession Act, 1925, states that everyone is entitled to equal inheritance.

 

Intestate Succession

 

The property gets delegated upon the relatives of the deceased in two ways:

  1. Testamentary Succession
  2. Intestate Succession

 

Testamentary Succession refers to succession resulting from a legally executed testament. It is also known as the right of inheritance. The testamentary succession is fixed at the time of a decedent’s death. It occurs when a person dies and leaves a will.

Intestate means when a person died without making a will, which is capable of taking effect. If a person is said to have died intestate that means he has not disposed his assets under a will. Or the disposition mentioned under a will is not capable of taking effect on account of the illegal bequest. If a person dies intestate, the assets in his possession are distributed as per the provisions of the Indian Succession Act.

 

Intestate Succession Among Hindus/Muslim/Christians

 

India has several laws governing the intestate succession among the different religions. The mains laws that governers the intestate are as follows:

  1. Hindu Succession Act
  2. Intestate Succession Act
  3. Sharia Law
  4. Indian Succession Act

 

Hindu Succession Act applies to Hindus, Buddhists, Sikhs and Jains. The laws applicable to inheritance depends on the gender of the deceased. In the case of males, there are four classes of people who can inherit the property of a man. The first preference goes to the Class I heirs than for Class II and so on. ‘Heir’ is a person, who under the law of intestacy is entitled to receive the property of the intestate deceased.

 

As per the Hindu Succession Act, 1956, further amended in 2005, if a Hindu male dies intestate then the following person can make a claim:

  • Class I heirs: The class I heirs are the immediate relatives of the deceased that is the wife, children, mother, siblings and grandchildren. If the children of the deceased died before the deceased, then their spouses will form part of Class I heirs.
  • Class II heirs: The class II  heirs include the father, grandfather, uncle, aunt, nephews and nieces of the deceased.
  • Class III heirs: The class III heirs are the relatives of deceased from the male line, but it is limited to the blood relatives. They are called as agnates.
  • Class IV heirs: They are the relatives of the deceased from the female line; they are called cognates.

 

If a Hindu female dies intestate, the four classes of heirs are slightly different:

  • Class I heirs: The husband and children of the female are the clas I heirs.
  • Class II heirs: The heir’s of her husband are the class II heirs of the female.
  • Class III heirs: The class III heirs are her parents.
  • Class IV heirs: The heir’s of her mother are the class IV heirs of the female.

 

The apex court in case of Danamma Suman Surpurvs Amar &Ors clarified that the position of law relating to the Hindu Succession Act, 2005 held that the right is inherent and can be availed by any coparcener, as per the amended act of 2005, even a daughter is a co-parcener.

 

Indian Succession Act is the act that applies to Parsis, Christians and other religions that are not mentioned in the Hindu Succession Act. The spouse of the deceased takes one-third of the total inheritance in the absence of children and no living relatives.

The remaining two-thirds are divided between the children and surviving relatives in the following order of preference:

  • Father
  • Equally between mother, brothers and sisters (nephews or nieces if brothers and sisters are dead)
  • Mother (in case if there are no brothers, sisters, nieces or nephews)
  • Other close living relatives

 

As per section 2 of the Indian Succession Act 1925, the legal heirs of the Christians are husband, wife or the kindred of the deceased. In Mary Roy v. the State of Kerala, the apex court decided upon the inheritance rights of a Christian Women against the law for the first time. It also held that no personal law can be held above the Constitution of India.

 

Sharia law applies to Muslims. Under this law, one can divide only upto the one-third of the estate. In Sharia law, whether the succession is testate or intestate, the son, daughter, father, mother, brothers, sisters, grandsons and granddaughters are the nine relatives that inherit the remaining two-thirds of the estate.

 

Conclusion

 

To avoid the complications and disputes within the family, proper planning should be adopted by the families. Due to the evolving nature of inheritance and succession law, proper steps should be taken to understand the inheritance rights. Despite several developments in law, the awareness regarding inheritance law is on a downward graph and hence it is the need of the hour.

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Surrogacy (Regulation) Bill, 2019

By: admin Family 06 Aug 2019

The Surrogacy bill was approved by Lok Sabha and introduced in Rajya Sabha on Monday, 5th August 2019. The Bill regulates the surrogacy services to prevent exploitation of surrogate mothers and to protect the rights of children born through surrogacy.

The Surrogacy (Regulation) Bill, 2019 regulates surrogacy by establishing National and State Surrogacy Board in India. The State and Union Territories shall constitute a State Surrogacy Board. The 228th report of Indian Commission recommended the prohibition of commercial surrogacy and has allowed the altruistic surrogacy by enacting legislation.

Altruistic surrogacy refers to those surrogacy agreements where the surrogate does not receive any monetary compensation. In most altruistic surrogacy agreements, the surrogate is a close relation to the intended parents (family member/close friend). 

  1. The main purpose of the bill is to prohibit illegal commercial surrogacy. It states that the intending couples should not abandon a child under any situation. Our country has emerged as a surrogacy hub for couples from other countries. 
  2. The unethical practice, exploitation of surrogate mother, abandonment of children born out of surrogacy and rackets involved in intermediaries importing human embryos and gametes are reported in our country on a large scale. Ethical Surrogacy for couples will be allowed on the fulfilment of specific conditions. 
  3. No permanent structure is created in the proposed bill. The government assures that there will be no financial implication except the National Surrogacy Boards and appropriate authorities to get the administrative budget of respective departments.
  4. Another clause added is that the couple should be legally married for at least five years before attempting to deliver a baby through surrogate mother.
  5. This clause attracted the issue of why should a couple have to wait for five years after marriage and what is the definition of a legally married couple.
  6. Critics say that bill had left single parent and aspiring parents from alternative sexualities out of the ambit of the law and hence making it very narrow. 
  7. The bill allows only altruistic surrogacy by infertile Indian couples from a close relative, and prohibit the foreigners from commissioning surrogacy. Single parents, homosexuals and live-in couples, cannot apply for surrogacy.
  8. Some amendments moved by the opposition are rejected. Health Minister, Dr Harsh Vardhan said that India has emerged as a hub for surrogacy in recent years due to the absence of any specific law regulating the sector. 
  9. The offences under the Bill include undertaking or advertising commercial surrogacy, exploiting the surrogate mother and abandoning, exploiting or disowning a surrogate child.
  10. The bill aims to keep a check on such clinics by protecting many poor women from exploitation. 
  11. According to Bill, women within the age group of twenty-three years to fifty years and men with the age group of twenty-six years to fifty-five years will be eligible for surrogacy.

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Rajya Sabha passes the Triple Talaq Bill

By: admin Family 31 Jul 2019

Rajya Sabha passes the Triple Talaq Bill

  1. Triple Talaq is an age-old practice followed by Muslim men wherein it gives them a right to instantly divorce their wife on the utterance of a single word ‘Talaq’. 
  2. Talaq means divorce in the Arabic language. 
  3. Some Indian Muslim groups believe that the Triple Talaq is grossly against women; however, they are of the opinion that this practise should be reviewed by the Muslim community leaders rather than the government. 
  4. A lot of Muslim leaders had earlier opposed the Triple Talaq bill stating that the BJP was entering their houses using the legislation. 
  5. But there were actual instances of Triple Talaq ending marriages over WhatsApp chat that started taking place. 
  6. Hence there was a dire need of legislation despite the Supreme Court ruling that the Triple Talaq is arbitrary and unconstitutional because the accused man will now face punitive action.
  7. The BJP hailed the passage of the Triple Talaq bill by Parliament as a step that will help correct a historical wrong done to Muslim women, even as the Congress questioned the relevance of criminalising the practice.
  8. The National Democratic Alliance (NDA) succeeded in getting the Muslim Women (Protection of Rights on Marriage) Bill, 2019 voted through despite the fact that it is in the minority in the Upper House, pointing to the government’s effective floor management.
  9. Despite stiff opposition from the Congress and other Opposing parties that demanded the bill be sent to a parliamentary committee for scrutiny, the government won the day by 99:84 votes. 
  10. The missing 30 parliamentarians helped the NDA government pass the bill. 
  11. The passing of the Muslim Women (Protection of Rights on Marriage) Bill was a major legislative success for the BJP.

PM Narendra Modi wrote on Twitter:

“An archaic and medieval practice has finally been confined to the dustbin of history! Parliament abolishes Triple Talaq and corrects a historical wrong done to Muslim women. This is a victory of gender justice and will further equality in society. India rejoices today!"

President Ram Nath Kovind wrote on Twitter:

“Passage in the Rajya Sabha of Muslim Women (Protection of Rights on Marriage) Bill completes Parliament’s approval of a ban on the inequitable practice of Triple Talaq. A milestone in the quest for gender justice; a moment of satisfaction for the entire country,"

Effects of the passage of the Bill:

  1. The pronouncement of instant Triple Talaq is void and illegal. 
  2. As opposed to the earlier law, Triple Talaq is now a punishable offence which can be punishable with imprisonment up to three years or fine or both. 
  3. The offence is cognizable (within the jurisdiction of the court) if the Muslim women, upon whom the Triple Talaq is pronounced files a complaint to an officer in charge of the police station.
  4. The offence shall be compoundable (those offences where the complainant enters into a compromise and agrees to have the charges dropped against the accused) at the instance of the married Muslim women upon whom Triple Talaq is pronounced. 
  5. An offender can be arrested without a Warrant 
  6. On an application by the accused, no person alleged of a punishable offence shall get bail unless the magistrate is satisfied that there are reasonable grounds to grant bail, after hearing the Muslim women.
  7. Married Muslim women upon whom Triple Talaq is pronounced entitled to receive from her husband, such amount of subsistence allowance as determined by Magistrate.
  8. Married Muslim women shall be entitled to custody of her minor kids in the event of pronouncement of Triple Talaq by her husband, as determined by the Magistrate.

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Guardian and Ward Act In India

By: Jayatinn B. Lalwani Family 16 Sep 2019

The Guardians and Wards Act is Central legislation enacted by the Parliament in the year 1890 with a view to protect the interests of the minor and to grant security to the minor himself and the property of the minor. The Act is of universal application irrespective of the religion dealing with guardianship of children.

A guardian is someone who gets appointed to take care of the minor himself or property of that person or both. The protected individual, known as the ward, is considered legally incompetent of acting for himself or herself; examples are a child or individuals suffering from a severe illness.

The question of guardianship most commonly arises in the households where there is an issue of parental abuse, negligence, drug dependency, divorce or death (in which case, custody is generally vested in one parent).

The Act aims to define a Guardian and a minor legally, it lays down a procedure for filing a case, manner in which the guardian can be appointed,  the manner to list down the property of the minor in relation to this act. These terms are more specifically described below:

Who is a Minor, Guardian, and a Ward:- 
  1. "Minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority. 
  2. "Guardian" means minor for whose person or property or both there is a guardian. 
  3. "Ward" means a minor for whose person or property or both there is a guardian.

Where can you file the case? 
For the Guardianship of a minor, the case should be filed before the District Court within the jurisdiction where the minor resides, or the place where the child has its property.

If the case of guardianship of the property of a minor is filed before the district court, not within the jurisdiction where the minor resides, the court has a right to return the application or to dispose of the same.

The Guardians and Wards Act, 1890 is a law to replace other rules relating to the guardianship of a minor. It is the only non-religious universal law for the guardianship of a child; It applies to all children despite any difference in caste, creed or race. 

As per the act, a minor is any person who has not completed 18 years of his age. The court and the appointed authority can decide the guardian of a child by selecting the one. No order can be passed without making an application. The application contains all information about the child/minor and reasons for guardianship. Once the court admits the form, then the hearing date is set by the court. The court will hear evidence before making a decision. A minor and his property may have more than one guardian. The court must work in the interest of the minor, taking into consideration the age, sex, religion, character of the guardian, the death of the parent(s) and also the relation of the guardian with a child. The court always considers the preference of the minor. 

The collector of the district within the jurisdiction of minor resides can appoint the guardian of the child. Guardians are not allowed to make a profit, but they can receive remuneration as the court seems fit. One minor cannot be deemed as a guardian of another. A guardian is responsible for the education, health and support of the ward.

Guardians who intend to move the child out of the court's jurisdiction may only do so with the permission of the court. Failure to get approval before moving the child is a punishable offence under this Act. A guardian of a minor’s property is not allowed to mortgage or sell the property of a ward without the permission of minor or the court who must act in the interest of the child.

The guardian must submit the list of ward's immovable and movable property to the court.  The court can allow the guardian of minor to use funds from the property or use the whole property for the maintenance of the minor. A court can remove a guardian for abusing the trust of the court and not performing his role as a proper guardian. A person who intends not to act as a guardian of a minor can apply to the court for the discharge of his duty. 

It is a punishable offence if the guardian fails to produce the property, or if he fails to produce the child before the court when ordered or if he fails to produce an account of the property of the minor. 
Reports submitted by the subordinates of court or collector can be considered as evidence. Such orders can be appealed in a High Court.

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