Mentoassociates.com – Legal Articles

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.

Last week we discussed the definition of Domestic violence. Similarly an act or omission, which has the effect of threatening the aggrieved woman, or any person related to her, constitutes domestic violence. The Act provides for registration of voluntary organizations as ‘Service Providers” for the purpose of this Act. An aggrieved person may file an application to the jurisdictional Magistrate seeking various reliefs under the Act. The magistrate shall endeavor to dispose every application within a period of 60 days from the date of hearing.

An aggrieved woman has various reliefs and rights under the Act. Section 17 provides the right to reside in a shared household, whether or not, she has any right, title or beneficial interest in the same.

The Magistrate can pass various protection orders in favour of the aggrieved person prohibiting the respondent from committing acts of domestic violence, prohibiting entering the place of employment of the aggrieved person, prohibiting communication with the aggrieved person, prohibiting alienating assets, operating bank lockers used or held or enjoyed by both the parties etc. Other reliefs under this act include residence orders, monetary reliefs, custody orders, compensation orders, orders pertaining to the custody of children etc.

The Protection of Women from Domestic Violence Act, which came into existence from 26-10-2006, is a remarkable piece of legislation in the history of Independent India. The same is considered as an achievement by various human rights activists and women groups. Domestic Violence is a gender specific violence, which is directed against women, and it occurs within interpersonal relationship. The Act provides more effective protection of the rights of women guaranteed under the constitution, to victims of violence of any kind, occurring within the family. It treats Domestic Violence as a human rights issue. It aims to protect women from domestic violence and to prevent the occurrence of Domestic Violence in the society.

The phenomenon of Domestic Violence is widely prevalent in the society but has remained largely invisible. The Act provides the appointment of ‘protection officers’ and ‘service providers’ in addition to the usual machinery of police and courts to enforce the various provisions of the Act.

Section 3 of the Act defines Domestic Violence. Accordingly, any act, omission, commission or conduct of the person which harms or injures or endangers the health, safety, life, limb or well-being, weather manual or physical, of the aggrieved person, includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse shall constitute Domestic Violence. Further an act or omission which harasses, harms, injures, or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property constitutes domestic violence. ——-(To be continued)

This Act attempts to control the aged old practice of child marriage, which was and even today, prevalent in many parts of India. Accordingly a male has to complete 21 years and a female 18 years to legally marry.

The act provides punishments to those who contract a child marriage. If a male between 18 years and 21 years, contracts a child marriage, he may be punishable with imprisonment, which may extend up to 15 days or with fine, which may extend to 1000 rupees or with both. If a male, above 21 years of age, contract a child marriage, he shall be punishable with imprisonment, which may extend up to 3 months and also shall be liable to fine. Whoever performs or conducts any child marriage shall be punishable with imprisonment, which may extend unto 3 months and also shall be liable to fine. Even the parents or guardians, who support child marriage, are liable to be punished as per this act. It is interesting to note that women offenders are not liable for punishment by imprisonment, as per this act.

The courts are also empowered to issue orders of injunction against persons who are going to perform a child marriage, prohibiting such marriages.

The Hindu succession Act 1956 has been amended in the year 2005.This amendment has brought in revolutionary changes, in the rights of women, in Hindu property.

Sec 6 of Act has been changed almost totally conferring rights on the daughter on par with the son. As per Sec 6, on and from the commencement of the Hindu succession (Amendment) act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,

a) By birth become a Coparcener in her on right in the same manner as the son.
b) Have the same right in the coparcenery property as she would have had, if she had been a son;
c) Be subject to the same liabilities in respect of the said   coparcenery property as that of the son.

And any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference of a daughter of a coparcener.

Earlier under section 23 of the Act, female heirs had some limitations to claim partition of the dwelling house occupied jointly by the members of the family. This section has been totally omitted by the 2005 Amendment, and now female heirs are entitled to claim partition. Further Sec 24, which prohibited share to an interstate’s heir’s widow if she remarried as on the date of succession opens, has been, omitted by the 2005 amendment.

Any marriage solemnized under the Special Marriage Act shall be null and void and may on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if-

(i)                any of the conditions of section 4 has not been fulfilled; or

(ii)              the respondent was impotent at the time of marriage and at the time of institution of the suit.

Any marriage solemnized under the Special Marriage Act, shall be voidable and may be annulled by a decree of nullity if

(i)                the marriage has not been consummated owing to the willful refusal of the respondent to consummate the marriage; or

(ii)              the respondent was at the time of marriage pregnant by some person other than the petitioner; or

(iii)            the consent of either party in the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872:

Provided that, in the case specified in clause (ii), the court shall not grant, a decree unless it is satisfied-

(a)     that the petitioner was at the time of marriage ignorant of the facts alleged;

(b)    that proceedings were instituted within a year from the date of the marriage; and

(c)    that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree;

Provided further that in the case specified in clause (iii), the court shall not grant a decree if-

(a)    Proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or

(b)   The petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.