now browsing by tag
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
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 “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…
FATAL ACCIDENTS ACT, 1855
Under this act a family can claim compensation for loss occasioned to them because of the death of a person by actionable wrong. If the death of a person is caused by a wrongful act, neglect or default, the injured party can recover damages thereof.
SUIT FOR COMPENSATION TO THE FAMILY OF A PERSON FOR LOSS OCCASIONED TO IT BY HIS DEATH BY ACTIONABLE WRONG.
The Limitation Act 1963
Period of limitation is a period of time within which a party can institute a suit in the court. A party cannot institute a suit if the period of limitation has EXPIRED.
Eg: Once the statutory period expires, the true owner will relinquish all legal rights over the property.
The period of limitation starts from when the work is done or when neglect comes to knowledge or from when the property is wrongfully taken etc. It varies depending on the situation and the time frame also varies.
Suits Relating to Accounts Read More…
SUITS BY INDIGENT PERSONS (POOR OR NEEDY PEOPLE):
THESE PROVISIONS ARE INTENDED TO ENABLE THE POOR OR NEEDY PEOPLE TO INSTITUTE AND PROSECUTE SUITS WITHOUT PAYMENT OF ANY COURT FEES. Generally a plaintiff (a person who brings a case against another in a court of law ) suing in a court of law is bound to pay court fees at the time of presentation of a plaint.
An Indigent person is exempt from paying fees provided the following conditions are satisfied:
Indigent person includes : person not possessed of sufficient means to enable him to pay the fees prescribed or where he is not entitled to any property worth one thousand rupees.
They have to apply and court will decide if the person can file as a indigent person or not.
However, grant of permission to sue as an indigent person does not meant that the person is exempt from payment of the requisite court fees. THE PAYMENT OF COURT FEES IS MERELY POSTPONED. If the person wins, the amount of court fees shall be recoverable by the state govt. If the person fails in the suit the court fees shall be paid by him.
Fundamental Rights: Cultural and Educational Rights
- Any section of the citizens having a distinct language, script or culture of its own shall have the right to conserve the same.
- No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
All minorities, religious or linguistic, can set up their own educational institutions to preserve and develop their own culture. In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution.