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Sec 125 Code of Criminal Procedure: ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS:
If any person having sufficient means neglects or refuses to maintain:
a) His wife, unable to maintain herself, or
b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
c) His legitimate or illegitimate child ( not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself or
d) His father or mother, unable to maintain himself or herself.
KEY FINDINGS IN RELATION TO SEC 125 (CRPC) – ORDER FOR MAINTENANCE:
a) The object of Sec. 125 is
- to achieve a social purpose i.e to prevent vagrancy and destitution.
- To protect women and children
- To assist women and children in distress
b) Speedy Remedy - Sec.125 provides a speedy and summary remedy by way of summary procedure.
c) No Limitation – when no period of limitation is provided under Sec 125 Crpc, the wife can claim maintenance at any time as the right is continuing.
d) Claim for maintenance for more than one valid wives – if the existence of more than one wife under the personal law of the party is legal, the legal wives are entitled to apply for maintenance.
e) Essential conditions – the essential conditions for grant of maintenance are that
- A person having sufficient means
- Is refusing or neglecting to maintain
- His wife, legitimate or illegitimate children or parents who are unable to maintain himself or herself.
Only because the wife and children had left the house on their own, is no ground to disentitle them to maintenance.
Where the wife had left her matrimonial home without any justifiable ground, she would not be entitled to the grant of maintenance.
- The expression “means” does not signify only visible means, such as, real property or definite employment.
- If a man is healthy and able-bodied, he must be held as having means to support his wife, child or parent.
- Once the person has the capacity to earn, he cannot escape the liability to maintain under S125.
- Even if a husband is declared insolvent, the husband cannot take the plea that he has no sufficient means to maintain his wife and children.
UNABLE TO MAINTAIN HERSELF:
- In order that a wife can apply for maintenance for herself, she has to allege in the petition and prove before the Magistrate that she is unable to maintain herself.
- The expression “unable to maintain herself” means unable to earn a livelihood.
- The earnings must be such as to maintain the wife without depending upon others.
- Merely because the wife earns a paltry amount, it cannot be said that she has sufficient means to maintain.
f) If the magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under S125, strict proof of performance of essential rites is not required.
g) A Divorced wife is entitled to and claim maintenance till she is remarried. So divorce does not end the right to maintenance under S.125 Cr.PC.
h) When the wife is living in adultery she cannot claim maintenance in view of S.125(4) of Cr.PC. “living in adultery” means continuous course of adulterous conduct more or less continuous. An occasional lapse would not be sufficient to refuse maintenance. It is for the husband to prove that the wife is living in adultery. When the respondent had already been divorced by the petitioner, she could not be refused the grant of maintenance on the ground that she was living in adultery.
i) Even if the mother is guilty of adultery and is disentitled to get maintenance, the maintenance of the children living with the mother cannot be refused. Mere suspicion of the husband that the child was born to his wife through adultery cannot disentitle the child of the maintenance.
j) Any parent unable to maintain himself or herself can get maintenance from their son or daughter having sufficient means. An adult daughter is bound to maintain her parents. Mothers include adoptive mothers but not step mothers.
k) MUSLIM DIVORCED WOMEN: Till the Muslim Women (protection of Rights on Divorce) act 1986 came into force, a muslim divorced woman had the right to apply for maintenance under S125. With the Muslim Women (protection of Rights on Divorce) act 1986 coming into force a divorced muslim woman cannot move any application for maintenance under S 125 of Cr.PC. It is only when the divorced wife and ex-husband mutually agree to take recourse under S125 such an application becomes maintainable
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
Definition of domestic violence:
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) 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 or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved
(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
(iii) “verbal and emotional abuse” includes-
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv) “economic abuse” includes- Read More…
LEGALITY OF LIVE IN RELATIONSHIPS IN INDIA:
Registration of a marriage is proof of marriage but it does not imply the existence of complete and lawful marriage between the parties. Thus, if solemnization of marriage between parties is not available, it will be presumed to be valid by cohabilitation between the parties.
Where a man and a woman live together as husband and wife for a long term, the law will presume that they were legally married unless proved contrary. Also, children born out of a live-in relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn’t have any claim as against Hindu ancestral property or under Hindu Undivided Family (HUF).
The Allahabad High Curt again recognized the concept of live in relationship in the case of Payal Katara vs. Superintendent, Nari Niketan and others, wherein it held that live in relationship is not illegal. The Court said that a man and a woman can live together as per their wish even without getting married. It further said that it may be immoral for the society but is not illegal.
The court made it clear that if the man has a live-in arrangement with a woman only for sexual reasons, neither partner can claim benefits of a legal marriage. In order to be eligible for alimony, a relationship must comply with certain conditions, the apex court said. The following conditions were laid down by the apex Court: Read More…
GROUNDS FOR DIVORCE FOR BOTH IN INDIA:
- Adultery – voluntary sexual intercourse with any person other than spouse. Does not include rape. One single act of adultery is enough for divorce or judicial separation.
- Cruelty – concept of cruelty includes conduct or such character as to have caused danger to life, limb or health, bodily or mentally or as to have risen to reasonable apprehension of such danger. Mental cruelty is more severe than physical cruelty. Scolding or nagging has also been considered as cruelty. Also, when a husband tried to strangulate wifes brother and his younger son in a fit of insanity he was held to be cruel. Thus, temporary insanity or schizophrenia cannot be an argument against the claim of cruelty.
- Desertion – when a spouse permenanty abandons the other without any reasonable cause and without the consent of the other for a period of not less than 2 years.
- Conversion – when a party has ceased to be a hindu by conversion to another religion.
- Veneral disease
- Renunciation – when a party has renounced the world by entering into any religious order.
- Civil/social death – that the other party has not been heard of as being alive for a period of seven years or more, by the people who would naturally have heard of the party, had that party been alive.
GROUNDS OF DIVORCE FOR WIFE IN INDIA:
- Rape, sodomy or bestiality
- Repudiation of marriage – in the case of child marriages.
ESSENTIALS OF A VALID HINDU MARRIAGE:
- Must not have a spouse alive.
- neither party is
- incapable of giving consent due to unsoundness of mind.
- though capable of giving consent, is unfit for marriage and procreation of children due to mental disorder.
- suffers from recurrent attacks of insanity.
- Boy is over 21 and girl is over 18.
- Parties are not within degrees of prohibited relationship.
- Parties are not sapindas. For example, if the bride is the offspring of any person within five generations (inclusive) on the groom’s father’s side and three generations (inclusive) on the groom’s mother’s side, or vice-versa, they will be referred to as “sapindas” of each other. In these cases, the Hindu Marriage Act of 1955 bars marriage between two Hindus.
THE NON-PERFORMANCE OF THE ABOVE MENTIONED ESSENTIALS MAKE THE MARRIAGE EITHER VOID OR VOIDABLE. Read More…
A gift deed is a deed in which the consideration is not monetary, but is made in return for love and affection. It is a document which transfers property to another as a gift. It is the transfer of certain existing moveable or immoveable property by one person to another and WITHOUT CONSIDERATION THAT IS, ‘PAYMENT’ OR A ‘PRICE’ and is made in return for love and affection. The person transferring the property is called the donor. The person to whom the property is transferred is referred to as the donee. The donee must accept the property during the lifetime of the donor and while he is still capable of giving . In case the donee dies before acceptance , the gift is void. The gift can be effected through a gift deed.
REGISTRATION OF GIFT DEED:
What is a CAVEAT?
Caveat is a two line application addressed to the court, mentioning the details of any matter which is instituted or expected to be instituted in a suit/appeal/proceeding before the said court where the applicant/caveator request that no order with regard to the said matter may be passed without giving notice to the applicant/caveator.
A plea made by the party to the dispute that the AUTHORITY SHOULD NOT DECIDE THE MATTER WITHOUT HEARING THEM and to avoid Judgement on one side hearing this procedure is adopted.
IN OTHER WORDS, IT IS A FORMAL NOTIFICATION TO A COURT OR COURT OFFICER NOT TO TAKE CERTAIN STEPS TILL THE CAVEATOR IS HEARD.
A “WILL” can be defined as “A legal statement written by an individual, stating the manner in which his or her wealth may be distributed after his or her demise.” A person making a Will is known as a “TESTATOR”.
A Will after death of person, reduces the confusion of sharing property amongst the family members and relatives.
In case a person dies without making a Will, he/she is said to have died intestate. His/her property shall be inherited to his/her legal heirs in accordance with the personal law applicable to him/her i.e. either The Hindu Succession Act, 1956, The Indian Succession Act, 1925, un-codified law of Muslims, Parsis etc.
Definitions in relation to preparation of a WILL: Read More…
DISHONOUR OF CHEQUES FOR INSUFFICIENCY OF FUNDS IN ACCOUNT (S 138 OF NEGOTIABLE INSTRUMENTS ACT):
This section deals with any cheque returned by the bank due to insufficiency of funds in the drawers account. Drawer is the person giving the cheque and payee is the person to whom the cheque is given. The payee has to provide a notice in 30 days, the drawer gets 15 days after the completion of the 30 days of providing the notice, to make the payment. If the drawer still doesn’t pay the amount then a suit can be instituted within 30 days (limitation period).
For Eg: Drawers cheque has been dishonored on 1st Jan and Payee sends notice on 2nd Jan so the drawer has to make the payment by 15th of February. Being 29 days from 2nd Jan + 15 days. Read More…
Arrest means apprehension of a person by legal authority so as to cause deprivation of his liberty. Thus, after arrest, a person’s liberty is in control of the arrester. Arrest is an important tool for bringing an accused before the court as well as to prevent a crime or prevent a person suspected of doing crime from running away from the law. However, to ensure that this power is not used arbitrarily, several restraints have been put on it, which, indirectly, can be seen as recognition of the rights of a person being arrested.
RIGHTS OF AN ARRESTED PERSON: Read More…