Mentoassociates.com – Legal Articles

A Police officer has the power to arrest any person without a warrant,  (a) who has been concerned in a cognizable offence or against whom a reasonable complaint has been made (b) who has in his possession any, implement of house breaking, without lawful excuse,(c) who is a proclaimed offender (d) in whose possession stolen property is found (e) who obstructs a police officer in the execution of his duty, or who has escaped or attempts to escape from lawful custody and (f) who is a deserter from the armed forces of the Union.

When any person commits a non-cognizable offence in the presence of a police officer and refuses to gives his name and residence or gives a false name or residence, then he may be arrested by such officer in order to ascertain his name or residence.

A private person may arrest or cause to be arrested any person who in his presence commits a non bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

If a person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, the police officer may use all means necessary to effect the arrest. However the police officer shall not cause of the death of a person, while trying to arrest, who is not accused of an offence punishable with death or with imprisonment for life.

Section 154 of the Code of Criminal Procedure 1973 deals with the formalities pertaining to the recording of the First Information Report, or more popularly known as FIR. When information relating to the commission of a cognizable offence, is given orally to an officer in charge of a police station, it shall be reduced into writing by him or under his direction. The matter so written shall be read over to the informant and such information whether given in writing or reduced to writing shall be signed by the person giving the said information. The substance of the said information shall be entered in a book to be kept by such officer.

A copy of the FIR shall be given immediately to the person who gives the information, free of cost. The said officer shall immediately send a copy of the FIR to the jurisdictional magistrate. The police officer has no power to refuse the registration of an FIR. Further there shall be no delay in registering the FIR. If the police officer refuses to register an FIR, then the aggrieved person can approach the superior officers.

The officer in charge of a police station can investigate a cognizable offence without the order of a magistrate. Investigation of a cognizable offence comes after the registration of FIR. After the receipt of an FIR, the officer in charge of a police station, shall proceed in person or depute one of his subordinate officers to proceed to the spot to investigate the case and if necessary, to take measures for the discovery and arrest of the offender.

“Where there is a will there is a way,” goes the age-old adage. Obviously, a properly drafted Will ensures smooth succession in property matters. A Will is a statement made by a person stating the manner in which his property must be distributed after his death. The person making the will is called testator. The person whom the testator bestows benefits in his will is called legatee or beneficiary. If the testator bequeaths all his property to one beneficiary through a will, such a person is called a universal legatee. Sometimes the testator may appoint a person to give effect to his will after his death. Such a person is called an executor.

It is not compulsory to register a will. If registered it does not require the payment of stamp duty. A will should have at least two witnesses who shall sign the document in the presence of the testator, and at the request of the testator and in the presence of each other. A witness cannot take benefit under the will to which he is a witness.

A certificate proving a will issued by the court is called a probate. A beneficiary or the executor may apply the court for the same. If a person writes more than one wills, the last will have preference over others.

Any person of sound mind and above eighteen years of age can dispose off his property by writing a will. An amendment to a will is called a codicil. A testator can revoke a will during his lifetime.

A will must be in writing. However soldiers, airmen and sailors while they are in action may pronounce their will orally in presence of two witnesses. Such wills are called privileged wills.

In this article let us have a bird’s eye view of the procedure and formalities for Divorce among Hindus. Section 13 of the Hindu Marriage Act 1955, deals with the manner of Divorce among Hindus.

A Hindu husband or wife can apply for divorce of his or her marriage to a Family Court on grounds of cruelty, desertion, and mental disorder of/from part of his or her partner. Further conversion to other religions, adultery, venereal and leprosy diseases in the partner are also grounds for divorce. If the partner is not heard of being alive for 7 years or more, renunciation of the world by joining any religious order etc are also grounds for a decree of divorce. The act also gives few additional grounds for wife such as acts of rape, sodomy and bestiality by husband, marriage during minority etc.

No petition for divorce can be filed before the lapse of one-year after the marriage. The petition shall be filed before the jurisdictional Family Court by the party aggrieved.

In tune with the emerging social changes, the act also provides for divorce by mutual consent of the parties. In fact there is a great increase in the number of cases of this nature filed, particularly in metro cities. The parties to a marriage can obtain an order of divorce by mutual consent, on the ground that they were living separately for a period of one year or more, and they have been not able to live together. The court may, in its discretion, not earlier than 6 months of the presentation of the petition and not later than 18 months after the presentation of the petition, pass a decree of divorce declaring the marriage to be dissolved.

We hear about children claiming maintenance from their parents, wives seeking maintenance from their husbands, but it is very uncommon to have heard parents claiming maintenance from their children. In the present technology driven society where children fail to take care of their parents, this is a valuable right available to aged and infirm parents, which is found in Chapter 9 of The Code of Criminal Prodcedure, 1973.

A father or mother who is unable to maintain himself or herself, and who has a son or daughter who has sufficient means and who refuses or neglects to maintain his parents, may file a petition before a magistrate of the first class. The magistrate after such enquiry can order the son or daughter to make a monthly maintenance to his or her parent. Such maintenance has to be paid from the date of application or from the date of order as decided by the court.

If any person who is ordered to pay such maintenance fails to comply with the said order, then the magistrate may issue a warrant for levying the amount due, or may even sentence the defaulter to simple imprisonment. It is pertinent to note that the parents need not to have given some assets or share of wealth to their children before they can enforce this right.

The proceedings are normally filed in the jurisdictional family court and may take on an average one to two years for the completion of the proceedings depending on the workload of the respective courts.

In an earlier article we had seen the requirements and circumstances in which a family court can grant divorce for Hindus. In this article let us analyze the grounds by which married Christians are eligible for an order of divorce.

Many of the grounds for divorce of Indian Christians are similar to that of Hindus. The Divorce Act, 1869 as amended by the Indian Divorce (Amendment) Act, 2001 guides the divorce proceedings among Indian Christians.

A marriage may be dissolved on the grounds of adultery, conversion to other religions, unsoundness of mind, suffering from leprosy, venereal diseases etc., of the opposite party. It may also be dissolved on grounds such as desertion, non-consummation of marriage, not being heard as alive for a period of 7 years, treating the partner with cruelty etc. Further a wife may file a petition for dissolution of her marriage if the husband has been guilty of rape, sodomy or bestiality.

In addition to the above, section 19 of the said act permits the husband or wife to present a petition for decree of nullity of marriage on grounds such as impotency of the partner, parties within prohibited degrees of consanguinity, partner being a lunatic or idiot, the former husband or wife of either party living at the time of marriage, obtaining consent to marriage by force, fraud etc. The jurisdictional family court after, proper enquiry and evidence may order either dissolution of marriage or decree the marriage as null and void.

Section 10-A of the said act gives the parties a revolutionary right, to get dissolved the marriage, by mutual consent.

The Hindu Adoptions and Maintenance Act, 1956 provide for the maintenance of a Hindu wife by her husband during her lifetime.

A Hindu wife is also entitled for live separately from her husband without forfeiting her claim to maintenance if the husband is guilty of desertion, has treated the wife with cruelty, is suffering from virulent forms of leprosy, if the husband has another living wife, if he has converted to another religion, and/or if the husband keeps a concubine in the same house. However a Hindu wife is not entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by converting to another religion.

The right of a wife to claim maintenance is an incident of the status of matrimony and if the wife succeeds in establishing the relationship of husband and wife, as a matter of course, the wife is entitled for maintenance.

In determining the amount of maintenance, the court will consider the following factors:
a. Position and status of the parties.
b. The reasonable wants of the claimant
c. Properties and income of the claimant etc.

The court can alter the amount of maintenance, whether fixed by a decree of court or by agreement, if there is a material change in the circumstances justifying such alteration.

The Hindu Adoptions and maintenance Act, 1956 regulate the adoptions among Hindus. As per this Act any male Hindu who is of sound mind and who is not a minor has the capacity to take a son or daughter in adoption. If he has a wife living, then the consent of the wife is required for the adoption of a child. Similarly a major female Hindu, who is of sound mind, and who is either unmarried, widowed or is a divorcee can adopt a son or daughter.

Only the father or mother or the guardian of a child can give the child in adoption. If father is alive, the father alone has the right to give in adoption, but with the consent of the mother. The mother may give the child in adoption if the father is dead or has completely renounced the world or has ceased to be a Hindu or if the father is unsound.

A person once adopted, cannot be adopted again by another person. Normally unmarried persons are given in adoption unless there is a custom or usage, which permits, married persons to be adopted. Similarly the person given in adoption shall not complete the age of fifteen years unless there are contrary customs or usages.

If the adoption is of a son, then the adoptive father or mother must not have a Hindu son or son’s son or son’s son’s son living at the time of adoption. Similarly if the adoption is of a daughter, then the adoptive father or mother must not have a Hindu daughter or son’s daughter living at the time of adoption.

Section 9 of the Hindu marriage Act, 1955 provides for restitution of conjugal rights. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements, made in such petition, and that there is no legal ground, why the application should not be granted, may decree restitution of conjugal rights accordingly. The existence of a valid marriage is an essential requisite for a decree under this section. The burden of proof lies on the party, which seeks a decree for restitution of conjugal rights.

Failure to render conjugal duties, refusal to stay together or of marital intercourse with the other spouse, would normally constitute withdrawal from the society of the other spouse. If either of the parties has a reasonable excuse in withdrawing from the other’s society, then a decree cannot be passed for restitution. What is a reasonable cause, would vary with time and circumstances, and will have to be determined by the court, in each individual case. Impotency of the husband affords a reasonable cause for the wife to stay away from him. Further cruelty, mental or physical, on the part of one spouse will be a reasonable excuse, for withdrawal from his or her society.

A District Judge within whose Jurisdiction a deceased person resided at the time of his death or within whose Jurisdiction any part of his property was found may grant the Succession Certificate under the Indian Succession Act. Application to the District Judge shall contain the details which include the time of the death of the deceased, the place of the residence of the deceased at the time of his death, details of the relatives of the deceased, right of the applicant in moving the application, the debts and securities in respect of which the certificate is applied for etc.

After the District Judge is satisfied that there is a ground for entertaining the application, a hearing date is fixed and notices are served on concerned persons. After hearing, if the District Judge decides that the right of Succession Certificate belongs to the applicant, the Judge shall make an order for the grant of certificate to him. The Judge may also grant a certificate to an applicant with a prima-facie best title, if he finds it difficult to determine in the ordinary manner.

A succession Certificate can empower a person to receive interest or dividends, on securities and to negotiate or to transfer the securities of the deceased person.