Mentoassociates.com – Legal Articles

The above Act was enacted by the Indian Parliament with an intention to provide effective provisions for the maintenance and welfare of parents and senior citizens. According to this Act, senior citizens who are unable to maintain themselves can make an application against their children for maintenance. If a senior citizen is a childless person, he can file an application against his relatives for maintenance.

The obligation of the children or the relatives to maintain a senior citizen extends to the needs of such senior citizens, so that such parents may lead a normal life.

If a person being relative of a senior citizen and is having sufficient means and is in possession of property of the senior citizen or if he would inherit the property of such senior citizens, then he is liable to maintain such senior citizens.

A senior citizen can file an application for maintenance to the maintenance tribunal. If he is incapable of making the application himself, he can authorize any organization or person to do the needful.

The tribunal is empowered to grant interim maintenance to senior citizens, during the pendency of proceedings before it. An application for maintenance shall be disposed off, in the normal course within 90 days from the date of service of notice and in exceptional cases, the tribunal may extend the said period, once for a maximum period of 30 days.

An application for the maintenance may be filed against one or more persons. The allowance for maintenance and for expenses for the proceedings may be passed from the date of the order or even from the date of filing the application. If the children or relative fails to pay maintenance to a senior citizen, then the tribunal can issue a warrant against them and send them for imprisonment for a term which may extend to one month or until payment, if sooner made which ever is earlier. The proceedings against the children and a relative shall be taken before the tribunal in a district where they resides or resided last.

The Act also provides for a conciliation officer who can try for a negotiated settlement between the parties. Normally the order for maintenance is made on a monthly basis. The maximum monthly maintenance is Rs.10,000/- per month. The tribunal has the power to make alteration in the allowances if there is a change in the circumstances or for other reasons like misrepresentation or mistake of fact done by the applicant before it.

This is a very important piece of legislation giving vital rights to woman employees. It applies to women employed in factories, mines, plantations, shops or establishments in which 10 or more persons are employed. As per section 4 of the act, employers are prohibited from employing a woman during the six weeks following the day of her delivery, miscarriage or medical termination of pregnancy. Even woman are not permitted to work in any establishment during 6 weeks following the day of her delivery. A pregnant woman has a right to take leave on a request to her employer for a period of one month preceding the period of 6 weeks, before her date of delivery, if she is employed in an arduous work, or one which involves long hours of standing, or something adversely affecting her health or the normal development of the foetus. Every woman is entitled to the payment of maternity benefit at the rate of average daily wage for the period of her actual absence for delivery. The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery. A woman employee can issue a notice to her employer stating that the maternity benefit to which she is entitled may be paid to her or her nominee and that she will not work for the period of maternity benefit. The said notice shall state the date from which she will be absent, date shall not be earlier than six weeks from the date of her expected delivery.Every women entitled to maternity benefit is also entitled to receive from her employer a medical bonus of Rs.250/-. In case of miscarriage or MTP, a woman shall be entitled to leave with wages for a period of 6 weeks following the miscarriage or MTP. In case of tubectomy, a woman shall be entitled to leave with wages for a period of two weeks immediately following the day of tubectomy.A women suffering from illness rising out of pregnancy, delivery, premature birth, miscarriage, MTP or tubectomy shall be, in addition to the normal maternity leave, entitled to leave with wages for a maximum period of 1 month.Every woman, who has delivered  a child, who returns to duty after such delivery is entitled to two breaks for nursing her child, during the daily course of her work, until her child attains the age of 15 months.The act also provides for appointment of inspectors who have wide powers for the enforcement of various provisions of the act. Further there are various penalties imposed on the employers who violate the provisions of the act. In addition, it is the duty of every employer to exhibit an abstract of the Maternity Benefit Act, 1961 in a conspicuous place in every part of an establishment in which women are employed.

Recently an order was passed by the Central Government which will benefit women working in government sector. Accordingly a women is entitled for a maternity leave of 180 days and paid leave upto two years for child care.

A marriage between an Indian citizen and a foreign citizen can be registered in India, under the Special Marriage Act, 1954. The conditions are:

a) The male should complete 21 years and the female should complete 18 years.

b) Both the parties should have soundness of mind to give a valid consent and they should not be having any mental disorder or insanity.

c) The parties should not have a spouse living at the time of the marriage.

The parties shall give a notice of intention of their marriage to the marriage officer within whose jurisdiction, at least one of them reside. The marriage officer will publish a copy of such notice in his office and will also send a copy of the notice to the office of the marriage officer, within whose jurisdiction the other party resides. Any person having any objection to the marriage should intimate the marriage officer, within 30 days of the publication of the above notice. On receipt of any objection, the marriage officer shall enquire into the same and pass an order in this regard. If the marriage officer upholds objection and refuses to solemnize the marriage, then the aggrieved party has to approach the district court for an appeal.  If the marriage officer overrules the objections, then the marriage can be solemnized. Three witnesses are required to sign a declaration witnessing the solemnization of the marriage. After the solemnization, the marriage officer will issue a certificate of marriage. The normal documents required are age proof, address proof and identity proof documents, in addition to photographs.

As per traditional rules,a Muslim husband can divorce his wife when ever he desires without assigning any specific reasons. Divorce petition initiated by a Muslim husband is called Talak. The Talak may be oral or in writing. A divorce by Muslim husband through spoken words is oral Talak. When it is through a written document, it is called a Talaknama. For an oral Talak there are no specific words prescribed. The words of Talak should be clear and it should convey the intention of divorce. The Talak need not be pronounced in the presence of the wife.A deed of divorce by a Muslim husband is called a Talaknama. Normally Talaknama is executed in the presence of Kazi or the wife’s father or other witnesses. The Talak may be effected by a simple pronouncement or by three pronouncements. A husband may delegate the power to divorce to the wife or to a third party and such a delegate may pronounce the divorce. In general the Talak is a divorce proceeding that is initiated by a husband wherein the wife has no say in the proceedings.

Supreme Court in Shamim Ara-vs- State of UP and another has held that talak shall be preceded by attempts for reconciliation and shall be for a reasonable cause. The reconciliation between the husband and wife shall be conducted by two arbiters, one chosen by the wife from her family and the other by the husband from his family. Any talak, in violation of the same can be legally challenged by the wife. Hence there is no more absolute power on a Muslim husband to divorce his wife at his whims and fancies. The Karnataka High Court in Zulekha Begum @ Rahmathunnissa Begum -vs-Abdul Raheem held that a Mohammedan husband cannot divorce his wife at his whim or caprice.

A Muslim marriage may also be dissolved by an agreement between the husband and wife. There are two types of divorces by mutual consent: Khula and Mubarat.

 In Khula divorce, the proceedings are at the instance of the wife wherein the wife agrees to give a consideration to the husband to release her from the marriage. 

Mubarrat is another form of consent divorce between a Muslim husband and wife. Here the initiative may be taken from either husband or wife. This also takes place with an agreement.

A Muslim wife may file a suit for the dissolution of marriage before the competent court under the dissolution of Muslim Marriage Act 1939.  The following are the grounds under which a Muslim wife can obtain a decree for the dissolution of her marriage.

1) that the whereabouts of the husband have not been known for a period of four years.

2) that the husband has been sentenced to imprisonment for a period of seven years or upwards

3) that the husband has neglected or has filed to provide her maintenance fir a period of two years.

4) that the husband has failed to perform without reasonable cause his marital obligations for a period    of three years.

5) that the husband was impotent at the time of marriage and continues to be so

6) that the husband is suffering from leprosy or virulent venerable diseases.

7) That she, having been given marriage by her father or other guardian before she attain the age of    fifteen years, repudiated the marriage before attaining the age of eighteen years.

 Another ground for a Muslim wife to approach the court of law for dissolution of marriage is cruelty  from the part of her husband. The court will consider cruelty as a ground to dissolve the marriage if  the husband

a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does     not amount to physical ill-treatment               

b) associates with women of evil repute or leads an infamous life              

c) attempts to force her to lead an immoral life

d) disposes her property  or prevent her exercising her legal rights over it,

e) obstructs her in the observance of her religious profession or practice

f) if he has more wives than one, does not treat her equitably in accordance with the instructions of the Quran.

After the divorce proceedings are completed, the parties have the right to enter into another marriage. If the marriage was consummated the wife has to wait for the completion of iddat before her remarriage. If the marriage is not consummated, she may marry immediately. On divorce being completed the amount of dower due to a wife becomes immediately payable. 

There are various legal safeguards for women to rely on, in case they are subjected to cruelty and harassment by husband or in-laws pertaining to matrimonial matters. The teeth of law are very much sharpened to protect the interests of fair sex. 

If a wife reports the incidents of cruelty, mental or physical, or the demand of dowry by her husband or in laws, a police officer is bound to register an FIR and investigate the matter. The police authorities in such cases act in a very mechanical manner. Even if there is no requirement to arrest the accused persons, they tend to immediately arrest the accused persons and put them behind bars. This, many times result in the torture of innocent persons, just because the legal system is weighed in favor of women. There are several instances when women misuse the benefits of law and lodge false complaints to settle personal scores. Though, in the end a court of law may acquit the accused, the trauma in carrying on with the case for years cannot be underestimated.

The accused in matrimonial offences can avail the benefit of anticipatory bail to avoid arrest and resultant torture in the hands of the police. If they sense the possibility of filing of false criminal case by the wife or her relatives, then they are advised to approach the Sessions Court or the High Court for an order of anticipatory bail. As a matter of right, a person cannot ask a court for the grant of anticipatory bail. The court will look into the facts of the case and grant bail in appropriate cases. Once anticipatory bail is granted, the police officials cannot arrest and detain the accused. They can arrest him, but they have to release him immediately.

The Dowry prohibition Act, 1961 prohibits the giving or taking of dowry. Dowry means any property or valuable security given by one party to a marriage to the other party to the marriage, at or before or any time after the marriage, in connection with the marriage of the said parties.

If any person gives or takes dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees. If any person demands any dowry from the parents or relatives of a bride or bridegroom, he shall be punishable with imprisonment for a term which shall not be less than 6 months, but which may extend to two years and with fine which may extend to ten thousand rupees. However, presents which are given at the time of marriage to a bride or bridegroom, without any demand, in that behalf does not constitute dowry. But such presents are to be entered in a list as prescribed under the Dowry Prohibition Rules.

If any person, through any advertisement, offers any share in his property or any money or a share in his business as consideration for the marriage of his son or daughter or if any person prints or publishes any such advertisement, he shall be punishable with imprisonment for a term which shall not be less than 6 months, but which may extend to 5 years, or with fine which may extend to fifteen thousand rupees.

“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.