Mentoassociates.com – Legal Articles

Cruelty is one of the grounds for a divorce petition under Hindu Marriage Act, 1955 and various other matrimonial laws of India. The Supreme Court of India through various decisions has explained the concept of cruelty.

1. In N.G. Dastane(Dr) vs S. Dastane reported in (1975)2 SCC 326, Supreme court has observed that conduct charged as cruelty should be of such a character as to cause in the mind of the Petitioner, a reasonable apprehension that it is harmful or injurious to live with the respondent.

2. In V. Bhagat vs D. Bhagat, reported in (1994)1 SCC 337, the Supreme Court held that the mental cruelty must be of such a nature that the parties cannot be reasonable be expected to live together. While arriving at such conclusion regard must be had to the social status, educational level of the parties, the society they move in and all other relevant facts and circumstances.

3. In the case of Savithri Pandey vs Prem Chandra Pandey reported in (2002)2 SCC 73, the Supreme Court observed that cruelty must be distinguished from the ordinary tear and wear of the life. It cannot be decided on the basis of the sensitivity of the Petitioner. But the same has to be adjudged on the basis of course of conduct , which would be in general, be dangerous for a spouse to live with each other.

4. In Parveen Mehta vs Indrajit Mehta (2002)5 SCC 706, the Supreme Court observed that the approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other.

5. In the case of A. Jayachandra vs Aneel Kaur (2005)2 SCC 22 the apex court held that for physical cruelty there can be tangible and direct evidence but in mental cruelty there may not be direct evidence. When there is no direct evidence, courts are required to probe into the mental process and mental effect of incidence that are brought out in evidence.

6. In the case of Vinitha Saxena vs Pankaj Pandit (2006)3 SCC 778 the Supreme Court held that what constitutes mental cruelty will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and deleterious effect of it in the mental attitude, necessary for maintaining a conducive matrimonial home.

7. In the case of Samar Ghosh vs Jaya Ghosh (2007)4 SCC 511 the Supreme Court observed that no uniform standard can be laid down for guidance with regard to mental cruelty. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a lengthy period, where relationship has deteriorated to an extent that, the wronged party finds it extremely difficult to live with other party any longer.

8. In the case of Naveen Kohli vs Neelu Kholi (2006)4 SCC 558, the Supreme Court held that Public Interest demands not only that the married status should as far as possible, as long as possible and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

9. The honorable High Court of Karnataka in the case A. Anil Kumar vs Vanishree A, reported in ILR 2009 Kar 3028, laid down the following principles with regard to the concept of cruelty:-

a. On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

b. On comprehensive appraisal of entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably put up with such conduct and continue to live with other party.

c. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

d. Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger of apprehension must be very grave, substantial and weighty.

e. Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

f. Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

g. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with other party any longer, may amount to mental cruelty.

10. The Supreme Court  in the case of Shobha Rani vs Madhukar Reddi  reported in (1988)1 SCC 105 has held that:

a. Cruelty may be mental or physical, intentional or unintentional. If it is physical, it will be easy for the court to determine it. If it is mental, the problem presents difficulty. It is a matter of inference to be drawn by taking into account the nature of the conduct and its effects on the complaining spouse. There may be occasions where the conduct itself is bad enough and it amounts to cruelty; in such cases the impact of such conduct need not be considered.

b. There has been a marked change in the life around us. The courts should not search for standards in life, while appreciating mental cruelty. Matrimonial duties and responsibilities are of varying degrees from house to house and from person to person. A set of facts, stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may depend upon the life style of the parties, their economic and social conditions, their cultural and human values etc.

c. The categories of cruelty are not closed, each case may be different. New types of cruelty may crop up in new cases. The conduct which is complained of as cruelty by one spouse may not be so, for the other spouse. Intention is not a necessary element in cruelty.

11. In Romesh Chander vs Savithri AIR 1995 SC 851, the Supreme Court held that if the marriage is dead and there is no chance of being retrieved it is better to bring it to an end.

12. The honourable High Court of Karnataka in the case of Hoovamma  vs Vishwanth reported in  ILR 2009 Kar 4193 has held that.

a. Cruelty is not defined under the Hindu Marriage Act. It is impossible to give a comprehensive definition to cruelty. It has been used in relation to human conduct or human behaviour.

b. If the spouses are living separately for a considerable time and there is no love lost between them, the marriage is dead emotionally and practically and there is no chance of being retrieved. Continuance of marital relationship for name sake itself constitutes a cruelty of mind. In such circumstances, trying to find out who is the cause for such sorry state of affairs would be an exercise in futility

1. Can foreign companies set up liaison office, branch office or project office in India?
A. Yes
2. Where is the application for the setting up of a liaison or branch office to be submitted?
A.Applications need to be submitted to Foreign Investment Division, Foreign Exchange Department,

Reserve Bank of India, Central Office, Mumbai through an Authorized Dealer bank

3. Which are the two routes under which application for liaison offices and branch offices considered

by the Reserve Bank?
A.Reserve Bank route where FDI is permitted under the automatic route and Government route

where FDI is not permitted under the automatic route.

4. What is profit making track record required for a branch office and liaison office to set up office in

India?
A. 5 years for a branch office and 3 years for a liaison office.

5. What is the net worth expected for a foreign company to set up branch office and liaison office in

India?
A. Not less than USD 100,000 for a branch office and not less than USD 50,000 for a liaison office.

6. What is the initial period of operation permitted for a branch office or a liaison office?
A. Initially three years. The same can be renewed later.

7. Is it mandatory for branch office and liaison office to obtain a PAN number?
A. Yes.

8. What are the activities a liaison office can undertake in India?
a.Representing the parent company in India.
b.Promoting export or import from or to India.
c.Promoting technical and financial collaborations
d.It cannot undertake any business activities and cannot earn income in India.

9. What are the activities a branch office can undertake in India?
a. Export or import of goods
b. Rendering professional or consultancy services.
c. Carrying out research work, in areas in which the parent company is engaged.
d. Promoting technical or financial collaborations between Indian companies and parent or overseas

group company.
e. Representing the parent company in India and acting as buying or selling agent in India.
f. Rendering services in information technology and development of software in India.
g. Rendering technical support to the products supplied by parent/group companies.
h. Airline / shipping company.
i. Retail and manufacturing activities are not permitted for branch offices.

10. Whether branch offices can remit profit outside India?
A. Yes, subject to applicable taxes in India.

11. When can a foreign company set up a Project office in India?
A. Foreign Companies who have secured a contract from an Indian company to execute a project in

India can set up a project office in India.

12. Are foreign partnership or proprietorship concerns permitted to set up branch/liaison office/

project office in India?
A. No.

13. Can entities from Nepal establish branch offices and project offices in India?
A. No.

14. Can foreign liaison offices, project offices and branch offices acquire immovable property in

India?
A. Only branch office and project office, not liaison office (exception being companies from Pakistan,

Bangladesh, Sri Lanka, Afghanistan, Iran, Bhutan or China).

Power of attorney is a very common document used in various transactions in day-to-day life. At the same time there are lots of misconceptions about the same. In this article let us get some first hand information about the various aspects of a power of attorney.

A Power of attorney is a document in writing whereby one person authorizes another person to represent him and to do certain lawful acts. The person who confers the power is called “Principal” and the person to whom it is given is known as “Agent” or “Attorney”. When the Power of attorney is given for a specific act then the same is known as “Special Power Of Attorney”. On the contrary if a Power of attorney is given to a person to do generally various acts and to represent the principal in a wide variety of transactions then the same is said to be “General Power Of Attorney”.

A Power Of Attorney may be revocable or irrevocable. If the person, who gives the power, retains the right to cancel it, then the same is said to be revocable one. On the other hand if this power is not retained, then the same is termed an irrevocable one. Normally, Power of attorneys pertaining to immovable properties, which are given after receipt of considerations are irrevocable ones.

A power of attorney has to be sufficiently stamped and the same may be notarized or registered. Normally those involving immovable properties need to be registered in the office of the jurisdictional sub registrar. Apart from the signatures of the Principal and the Attorney, it is better to have the attestation by two witnesses.

A power of attorney may be granted by one Principal to several agents or several principals to one agent provided there is uniformity in the purpose.

The Power of Attorney is terminated on the revocation of the same by the principal, when the purpose of the instrument is completed, when either of the parties become unsound or dies and when the Principal is declared unsound.

It is a common thing that people leave out important information in registered deeds. Some times errors may creep in such documents. Such omissions or errors are fatal to those documents. People use a rectification deed to correct such mistakes.

In a rectification deed the same parties who were in the original deed, should be made the parties. Normally there is a mention about nature and contents of original deed. Thereafter the error or omission or defect in the earlier deed is described. After that, the change or addition to the earlier matter in the original deed is described in detail.

Normally in Karnataka the stamp duty for a rectification deed is Rs 100/-(Rupees One Hundred Only) and registration fee is Rs 100/- /-(Rupees One Hundred Only). In addition to this, the necessary scanning charges need to be paid. If there is some crucial changes like changes in the area of property, description of the property etc, then the subregistrator is entitled to demand the proportionate stamp duty and registration fee. It is ideal to keep the same witnesses as in the original deed. The rectification deed shall be signed by both the parties and the same shall be witnessed by the two witnesses.

For Future references the original deed and the rectification deed shall be considered together as one document. Only advocates and licensed deed writers are entitled to draft a rectification deed.

The sale agreement holder of a property is not entitled to sell the property to another person for the reason that he does not have absolute rights over the property. In such a case it is very common to enter into an assignment agreement to transfer the rights of the sale agreement holder to another person.

The person who transfers his rights is called assignor. The person who obtains rights through the assignment agreement is called assignee. Normally an assignment is done for some consideration.

Let us take an example. Assume A enters into a Sale agreement with B for the sale of a property, for, say Rs.100/- Here A is the vendor and B is the purchaser. Now B wants to assign his rights to C for a total consideration of Rs.120/-. Here B is the assignor and C is the assignee. The net profit got by B is Rs. 20/-.

Normally, the approval of the original vendor is required for an assignment. For this original owner may be made as a consenting witness. Some builders/owners may insist for a transfer fee for an assignment. The assignee gets all the rights and obligations of the assignor after the assignment agreement is signed and he steps into the shoes of the original agreement holder (assignor). An assignment agreement shall be carefully drafted with the assistance of an experienced advocate.

A Sale Agreement is a very common deed that one executes in transactions pertaining to immovable properties. In this article, let us see, the major ingredients of a normal sale agreement.

a) A sale agreement should contain the name, father’s name, age and address of the seller and purchaser.
b) It shall also contain the date of the agreement as well as the place where the agreement is executed.
c) A brief description of the property which is the subject matter of the sale shall be given in the body of the agreement and the detailed description of the same shall be given in a separate schedule which is at the last portion of the sale agreement. As a normal convention, the property which is the subject matter of a sale agreement is referred in the agreement as schedule property.
d) The sale agreement shall contain a clause, to the effect that the seller has offered the property for sale, to the purchaser and the purchaser has agreed to purchase the property from the seller.
e) There shall be a mention of the total sale consideration amount, as well as the amount which is paid at the time of entering into the agreement.
f) The period of the agreement shall be clearly spelt out in the agreement. It is the duty of the purchaser to pay the balance sale amount before the date of registration and get the property registered in his name.
g) The purchaser will have a right to appoint a nominee on his behalf for the purpose of registering the property.
h) It is ideal to give a brief description of the history of the property.
i) Normally, a penalty clause is provided in the sale agreement with an intention to derive commitment and seriousness from the parties to the agreement.
j) If there is any outstanding loan over the schedule property, the details of the same shall be mentioned in the sale agreement and the manner in which the seller shall clear the said loan has to be mentioned in the sale agreement.
k) If there are any other documents to be procured by the seller or any things to be done from the side of the seller before the date of registration, then the same shall find a place in the agreement.
l) Normally, all the expenses towards the drafting of the sale agreement, sale deed, stamp duty, registration charges etc shall be borne by the purchaser.
m) The possession of the property shall be handed over to the purchaser on the day of the registration. If the possession is handed over at the time of sale agreement, then the stamp duty on the sale agreement will considerably vary.
n) The original documents are normally handed over by the seller to the purchaser at the time of registration.
o) The sale agreement shall be signed by both the seller and purchaser and the same shall be witnessed by two witnesses.
p) Only advocates and registered deed writers are authorized to draft a sale agreement.

Gift is a very common mode of transfer in immovable as well as movable properties. Section 122 of the Transfer Of property Act defines a Gift as a transfer of moveable and immovable property by one person called the “Donor” to another person called the “Donee”. A Gift shall be made voluntarily and without any consideration. The gift shall be accepted by the Donee during the lifetime of the Donor. A gift can be made only of a property that is existing and not of future things. A gift, once given, cannot be revoked, in the normal course, for any reasons.

A Gift Deed needs to be registered and attested by two witnesses. It also attracts stamp duty. When the Donee is a member of the family of the Donor (including husband, wife, son, daughter, daughter in law and grand children) there is a stamp duty benefit when the gift of the immovable property is made. Gifts not covering the above said relations and between strangers involve stamp duty as in a sale transaction. A gift of movable property can be effected by simple delivery of the property.

As far as possible market value of the property gifted should be indicated in the Gift deed. There should be a clause that the donee has received possession of the gifted property. The Donor should not reserve any right for himself in the gifted property.