by Aggarwals Associates | Jan 30, 2021 | General
Convenience of the parties to the case is a prominent matter to be taken in view in litigation. Our Indian legal system provides the provisions under the law for transfer of case from one court to another. In simplest terms, transfer petition is filed before the court of law when one of the parties to the case wants to transfer his/her case from one court to another court for the purpose of convenience. It is the discretion of the court to approve or disapprove such request of the party.
What can be a ground for transfer?
There are some grounds on the basis of which a person desirous so can file transfer petition before the court. These grounds are enumerated below:-
- Apprehension of prejudice: – If party to the case apprehends that opposite party may hamper with the proceedings by using its dominant power in such specific jurisdiction then this can be valid ground for filing a transfer petition.
- Threat to life: – Threat to life is also a good reason for transfer of the case. There might be a risk to the life of the party contesting a case. Under these worse circumstances such party can file for transfer of the case.
- Lack of support: – If the party doesn’t have any support or convenience in the original jurisdiction of the case then he/she can apply for transfer.
- Medical issues: – If party cannot travel due to some medical reason then he/she can file such petition along with the proof of medical issue.
- Family problem: – Family problems such aged or ailing parents, minor kids and loss of their studies can be considered while entertaining the transfer petition.
- Financial reasons: – If the party has financial issues such as he/she has low income or no income for travelling etc. then this could be a valid reason for transferring case to the court according to convenience.
What are the legal provisions?
The provisions related to transfer of case from one court to another are enshrined under various enactments. These are explained below:-
Under Code of Civil Procedure (CPC):- Under Section 25 of CPC the Hon’ble Supreme Court is empowered to transfer civil matters. The Apex Court can transfer any civil case, appeal from High Court or other civil court in one state to another state. This power can exercised if the court is satisfied that transfer is necessary to secure the ends of justice. According to Section 22 of the Code, Civil Court can transfer the suit from one court to another court on application made by the defendant. Section 24 of the Code empowered the High Court or District Court to transfer the cases on application made by the parties.
Under Code of Criminal Procedure (Cr.P.C.):- Section 406 of Cr.P.C. grant power to the Hon’ble Supreme Court to transfer criminal case or appeal from one High Court to another High Court or from Criminal Court under one High Court to another Criminal Court under another High Court. The Apex Court can use this power on application made by Attorney-General of India or a party so intended.
The power of High Court to transfer the cases and appeals are provided under Section 407 of Code for convenience of the parties and in the interest of justice. Session Judge is also empowered to transfer cases and appeals from one Criminal Court to another Criminal Court in his/her session division under Section 408 of the Code.
Conclusion:-
The law is made for betterment of the people. It is the duty of the state to ensure justice to all its citizens equally. For the sake of providing justice our lawmakers enacted the provisions to transfer the cases on requirement. Justice is predominant and if justice demands the transfer of case then court should not hesitate while doing so. At the same time these powers must be used cautiously to avoid the miscarriage of justice.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Jan 29, 2021 | General
The issue of child custody crops up during a divorce or judicial separation. It is one of the most sensitive topics that the judiciary is supposed to deal with almost every day. In legal terms child custody is the process of allotting a right to one of the parent to have over the other regarding their child during or after the decree of divorce or judicial separation is passed.
The parent who gains the child custody is supposed to keep the child under his/her guidance and care. The other parent can only meet the child as per the guidelines of the court.
Types of child custody in India:
- Physical custody: In physical custody court declares that the child lives with custodial parent and undertakes all the day to day activities.
- Joint physical custody: In this type of custody child lives with both parents for a significant time period. In such time period, both parents come to a consensus of care taking the child or both parents have equal rights on their child.
- Third party custody: In third party custody, the court granted all the rights to the third party. Thus, none of the biological parents have any rights to the child.
- Sole custody: Where one parent is declared to be unfit for the custody of child by the court for any valid reason. Such reason may be abusive, violent, unstable or incapable in nature. Therefore, the entire right of the child lies in the hands of one parent only.
Who can claim custody of a child?
Anyone from the parents of the child can claim the custody of child. In any of the case where both the parents are not in the picture due to operation of some other laws or deceased then in such situation, the maternal or the paternal grandparents or any other relative can claim custody of the child. In many cases, the court appoints the third person as the guardian of the child.
To whom priority is given in child custody cases?
The Hon’ble Supreme Court and other courts in India have repeatedly mentioned that for the custody of a minor, the only consideration is the welfare of the minor, irrespective of the claims of the parties to the custody of children. Under the Hindu law and as well as secular law, the custody of the child under the age of five is usually awarded to the mother.
In most of the cases fathers gets the child of the older boys and mother of the older girls. If the age of child is 9 years or more then his/her choice is considered by the court. A mother is not given the custody if she is found to be ill-treated and neglect the child.
Child custody under Hindu Law:-
The Hindu laws are applicable if both parties are Hindus; the custody of a Hindu child is governed by the Hindu Minority and Guardianship Act, 1956, Marriage Act, 1955 and Guardian and Wards Act, 1890. Some general rules of child custody applicable on Hindus are:-
- The custody of a child below the age of 5 should be given to the mother as it is believed that child of such a tender age needs affection and love which can only be provided by mother.
- It has been a customary practice under Hindu law that the father is the natural guardian and has the ultimate right of custody. This practice has been codified in Section 6 of the Hindu Minority and Guardianship Act, 1956 and the custody of children in India above the age of 5 and below the age of 18 years has been the right of father.
- If the court believes that the parents are unwilling or unable to take care of the child or in his/her best interest, then court can award the custody of such a child to the close relatives. In case close relatives are also not able to dispose of the duties of the parents, then the custody can also be given to a capable third person at the discretion of the court.
- There are certain persons who cannot be given child custody i.e. a person who has certain bad habits that will adversely affect the proper upbringing of the child, a person who is ceased to be a Hindu or converted to any other religion, a person who has renounced the world and does not believe in any materialistic pleasure and a person who is not able to carry out the development of the child in his/her best interest in such a case even mother of a child of a tender age can be denied custody.
- The court while deciding on custody can provide the other parent with visitation rights by passing interlocutory orders. Wherein the other parent can be given some time to visit the child.
Custody under Muslim Law:
Under personal Muslim law, there is a concept called “Hizanat.” In this, the right to a child‘s custody is given solely to a mother unless she is found to be unfit guardian. And this right can be enforced against any person including the father. But justifying the welfare of the child the mother’s right of child custody is not absolute and exists only if such right is beneficial and in the interest of child.
Custody under Christian Law:
The Christian religion needs to follow the laws and reforms set under Section 41 of Divorce Act for child custody. As per Section 41 of the Act, the courts have the right to pass orders as to custody, education and maintenance of the child. The child is given to a person who proved to be a better guardian for the child and the claim can even be denied if the court finds that both the parents are incapable of giving a proper atmosphere to the child.
Custody under Parsi Law:
The custody of a child under Parsi Law is dealt with the provisions of the Guardians and Wards Act. There is no specific law related to child custody under Parsi Law. Under the Parsi Marriage and Divorce Act, 1936, the wife can claim for maintenance to support their minor children.
Conclusion:
The child custody laws in India are evolving and now all of them have adopted the uniform practice of keeping the child’s best interest in mind. The custody of a child depends upon the personal laws and read with the Guardians and Wards Act. The recommendations of the Law Commission and the new petitions are thriving for equality among the father and mother in the custody rights. In the present era courts have adopted a tendency of keeping mother and father equally while deciding the child custody case.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Jan 28, 2021 | General
A dowry death is violence by the husband and his family with a motive to extort money and gifts from time to time against married women. Dowry is an ancient custom in which payments of cash or gifts are given to the groom’s family by the bride’s family at the time of marriage. It may include cash, jewelery, electrical items, furniture, utensils and vehicles etc. that help the newly married couple to start their journey. The continuous demand of dowry and non fulfillment of the same often leads to unnatural death of recently married woman.
What are the laws?
The Govt. of India has enacted many laws to curtail this social evil like the Dowry Prohibition Act, 1961 and also introduced specific amendments in Indian Penal Code, Criminal Procedure Code, the Evidence Act and other statutes. The elaborations of these laws are given below:-
The Dowry Prohibition Act, 1961
Being a primary dowry related law in India, the Act define the term dowry and provides punishment for breach of various provisions of the Act. Let’s study the essential provisions associated with dowry enshrined under this Act:
What is dowry?
By amendment the Act extends the definition of term dowry. According to Section 2 of the Act dowry mean any property or valuable protection or agreed to be given directly or indirectly in connection with marriage in the future amounts to dowry from one hand to another.
In Inder Sain v. State (1981 CriLJ 1116), Delhi HC held that consideration was limited to intent or intension, compensation or reward for marriage and would therefore not include any property sought or rendered after marriage. The expression “any time after the marriage” has been delivered to replace “after marriage” to eliminate a restricted interpretation of the statute. Gift concepts are only allowed in Indian marriages which are customary in nature, which does not create a financial burden on a family. A list of such presents is to be prepared along with the value and description and must be signed by the bride and bridegroom.
Punishment under the Act:
According to Section 3 of the Act giving and taking dowry is punishable with a minimum term of 5 years and fine of Rs. 15000/- or dowry amount. Similarly, dowry demands also are punishable under Section 4 for the period of 6 months to 5 years and fine up to Rs. 15000/-.
Who can file complaint under the Act?
According to Section 7 of the Act following persons can initiate the proceedings:
- Aggrieved Person
- Family, relatives and friends of aggrieved person.
- Any welfare organization or institution.
- Police
Indian Penal Code, 1860
The Indian Penal Code prescribed anti-dowry law with reference to dowry deaths under Section 304-B and cruelty or domestic violence for dowry demands under Section 498-A.
Section 304-B Dowry Death: Section 304-B describes dowry death as the death of women caused by burns or physical injury or under unnatural circumstances within 7 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 of dowry. A person can be punished under this Section for imprisonment upto 7 years and can be extended to imprisonment for life.
The following essentials must be fulfilled in order to attract the offence under Section 304-B:
- The death is caused by burns or damage to body, or under unnatural circumstances.
- The death has taken place within 7 years of marriage.
- Women must have been subjected to cruelty and abuse by her husband and relatives of her husband.
- Such abuse or cruelty should be linked to dowry demand and shortly before death.
In Mustafa Shahadal Shaikh v. State of Maharashtra (Criminal Appeal No. 1406 of 2008), SC held that the language used under Section 304-B “Soon before death” means no definite period has been mentioned under the Penal Code as well as under Section 113-B of Indian Evidence Act. Accordingly, term “Soon before death” determined by courts depending upon the facts and circumstances of the case. However, the said expression would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
Section 498-A Cruelty on woman by husband or relatives: When the woman is exposed to abuse or cruelty by her husband or relatives of husband then husband and such relatives can be punished for 3 years and with fine under this Section. Cruelty can be both mental and physical. It consists of any willful conduct likely to drive the woman to commit suicide or to cause danger to her life, limb or heath or causing harassment to her with view to coerce her or any person associated with her to satisfy any unlawful demand of dowry.
Code of Criminal Procedure, 1973
Sections 174 and 176 of Cr.P.C. deals with investigations and enquiries associated with the causes of unnatural deaths by police and magistrate. The amendment within the year of 1983 makes it mandatory for police to send the body for post-mortem examination if the death of woman occurred within 7 years of marriage in a matter of suicide or unnatural death. It also empowers executive magistrate to look into matter of death of woman in unnatural circumstances.
Indian Evidence Act, 1872
Section 113 B of Indian Evidence Act talks about presumption of dowry death. It creates burden of proof in dowry death consistent with which court has to presume that a dowry death was caused by the person who is shown to have treated the woman with cruelty or harassment soon before her death.
Conclusion:
Despite the rapid liberalization and globalization dowry has become the one among the gravest social evil. This menace is growing with the passage of time and shockingly the practice is more rampant in urban areas among educated people. Woman in high income and affluent families are subjected to more such practices in the name of honour and reputation of family. It is needed to know that demanding dowry is simply another name for begging. Proper female education, awakening of the general public conscience seems to be the sole remedy that would eradicate this social curse.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Jan 27, 2021 | General
Maintenance is an integral part of matrimonial proceedings. Maintenance is a monetary relief granted by the court under which husband needs to pay to his wife when she is unable to sustain financially on her own during the divorce proceedings as well as post divorce. Maintenance is paid by the husband either on a monthly basis on in a lump sum so that the wife can avail the basic amenities of life such as food, clothing, shelter etc.
The law relating to maintenance differs from religion to religion. The amount of maintenance is not fixed. It depends on various aspects such as income of the husband, number of people dependent on husband for their survival and living standard of the wife etc. Recently Supreme Court said that maintenance should be at least 25 % of the income of the husband.
Maintenance Laws in India:-
There are various laws that govern the matters related to maintenance in India. Some of them are following:-
- The Hindu Marriage Act.
- The Hindu Adoption and Maintenance Act.
- Muslim Women (Protection of Rights on Divorce) Act
- Indian Divorce Act
- The Parsi Marriage and Divorce Act
- Section 125 of the Cr.P.C.
Claim of maintenance can be filed under more than one provision like under Section 125 of Cr.P.C. as well as under Section 24 of Hindu Marriage Act. The law is well settled that petitioner would be entitled for higher maintenance if two courts have passed different amounts towards maintenance. However, petitioner will not be entitled to have maintenance of total sum from two courts. The higher amount is to be paid and not cumulative.
Who can claim maintenance?
Wife can file a claim for maintenance for herself as well as for children from the husband. Parents and minor children also can claim maintenance. However, major children can claim maintenance if he/she is unable for livelihood due to physical or mental abnormality.
Can husband claim maintenance?
Section 24 of the Hindu Marriage Act makes both husbands and wives as liable to make claim. Man can claim maintenance from his wife who is financially sound and earning more, if he is unable to sustain himself financially. So husband can claim interim maintenance from his wife during the pending proceedings under this Act.
What if wife is earning?
Notion of working women can’t claim maintenance is not true. According to Supreme Court ruling, even if a wife is earning, she can claim maintenance from her husband if her income is not sufficient for livelihood. The Section 125 of Cr.P.C. provides that wife can claim maintenance even if she is living separately and not divorced. Husband can’t deny for maintenance by saying that he is jobless or is not earning.
Where maintenance proceedings can be filed?
Wife can file maintenance proceedings at one of the following places:-
- Where husband resides or carries on his business.
- Where wife resides.
- Where husband wife last resided together.
- Where the matrimonial proceedings are pending.
Parents can file maintenance case in any place where:-
- They resides.
- The child resides.
Maintenance under Hindu Law:-
The Hindu Marriage Act and the Hindu Adoption and Maintenance Act give women the right to claim maintenance after divorce. Under Hindu Marriage Act, there are two types of maintenance i.e. interim or permanent. Under Section 24 of the Hindu Marriage Act, interim maintenance is granted by the court during the pendency of the case in the court. Permanent maintenance is governed by Section 25 of the Act. Such maintenance is awarded when the whole case is finally decided.
As per Section 18 of Hindu Adoption and Maintenance Act, Hindu wife can claim maintenance from her husband is she living separately from her husband due to valid reason. Divorce or other pending matrimonial proceedings are not necessary under this Act to claim maintenance.
Maintenance under Muslim Law:-
A divorced Muslim woman can claim maintenance within the iddat period under the Muslim Women (Protection of Rights on Divorce) Act. The amount of Mehr or dower has to be paid to the wife. Husband is required to pay maintenance to the children of 2 years of age born before or after the divorce.
Maintenance under Indian Divorce Act:
A Christian divorced wife can claim maintenance for life under Indian Divorce Act by filing case in Civil Court or High Court. Wife can obtain maintenance during the pending suit under Section 36 of this Act. Such interim maintenance shall not exceed the 1/5th of husband’s average net income of next preceding 3 years from the date of order. Permanent maintenance can be granted under Section 37 on dissolution of marriage.
Maintenance under Parsi Marriage and Divorce Act:-
Parsi law recognizes both interim and permanent maintenance. The maximum amount that can be granted for maintenance during pendency of suit is 1/5th of husband’s net income.
Maintenance under Section 125 of Code of Criminal Procedure:-
Section 125 of Cr.P.C. being a secular provision makes members of all communities eligible to get maintenance including wives, children and parents if they are unable to maintain livelihood. Only a divorced wife and who has not remarried can claim maintenance under this Section. Wife can’t claim maintenance if she lives in adultery, left the husband without sufficient reason, or both spouse are living separately by mutual consent.
Under his provision parents and minor children can also claim maintenance. Major Child can only claim maintenance if he/she is unable to maintain livelihood due to physical or mental abnormality. Both legitimate and illegitimate children can take the benefit of this legal provision.
Conclusion:
Maintenance is often seems to be biased favour granted to woman, but looking at the miserable condition of woman her dignity and needs are to be protected in the best way possible. The amount of maintenance varies as per the condition of both husband and wife. In certain cases the court may reduce the amount taking into consideration the financial condition of wife. Husband can also get maintenance in exceptional cases under some personal laws in India.
-Kiranpreet Kaur
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
by Aggarwals Associates | Jan 25, 2021 | General
The term “Hindu” originally is not an Indian word. The term “Hindu” was first used by the Greeks and then the Persians to refer to land and people who reside beyond the Indus River.
Concept of Hindu Law-
Hindu law is a law which emanates from Smritis set forth in Sanskrit commentaries and digests. The Smritis texts however do not make any clear cut distinction between rules of law and rules of morality or religion. These rules of religion and morality were dealt with at one and the same place with the rules of law. In the case of ShriBalsu, the Hon’ble Privy Council distinguished between legal and moral rules. The High Courts in India have tried to lay down some tests. On the basis of which entire body of Hindu Law has been built up. Even during the Mohammedan rule in the country, the Smriti law was continued to be fully recognized.
Applicability of the Hindu Law-
Hindu Law applies to all persons who are Hindus but there is still no precise definition of the term Hindu either in any statute or in any judicial decision. Hindu law is applicable to the following categories of persons:-
- Any person who is a Hindu, Jain, Sikh or Buddhist-
There are two type of persons fall in this category such as:
- A person who follows the Hindu religion either by practicing it or by professing it.
- A person who converted to Hinduism, Jainism, Buddhism or Sikhism.
The Hon’ble Supreme Court in Perumal v/s Poonuswami [1971 S.C. 2352]observed that an individual could also be a Hindu by birth or by conversion. No formal ceremony of purification or expiation is important to effectuate conversion. Only bonafide intention to be converted to the Hindu faith amid conduct unequivocally expressing that intention could also be a sufficient evidence of conversion. A person who is a reconvert to Hinduism, Jainism, Buddhism or Sikhism is also a Hindu.
- Any person who is born Hindu by birth-
The following persons are deemed to be Hindus by birth:
- When both the parents are Hindu then the child is known to be Hindu by birth. Such a child may be legitimate or illegitimate. It is not necessary that such a child does or does not profess, practice or has faith in the religion of its parents.
- When only one parent is Hindu and the child is brought up as a member of Hindu family, he is called to be Hindu. It is not necessary that the child’s religion is of his father.
In the case of Ram Prasad v/s Dahin Bibi [AIR 1924 Pat. 420] The Hon’ble Court observed thatif a child is born of Hindu mother and Muslim father. The child is brought up as a Hindu. Subsequently, mother converts to Islam. Nonetheless the child is Hindu.
- Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any other law- In such case,it has to prove that Hindu Law is not applicable to such a person. Here in this class those persons falls who are atheists or who believe in all faiths or in conglomeration of faiths. Under the codified Hindu Law such persons are going to be called as Hindus for the purpose of the application of Hindu law.
Non-Applicability of Hindu Law-
- It is not applicable for a legitimate/illegitimate child whose father is a Hindu and mother is Christian and the child is brought up as a Christian.
- It is not applicable to the Hindus who are converted to Muslims, Christians, Parsis or Jews.
-Shrinkhla
Associate at Aggarwals & Associates, S.A.S. Nagar Mohali
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