Power of Attorney Facts

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What is a Power of Attorney?
A power of attorney is an instrument empowering a specified person to act for and in the name of the person executing it.

Power of Attorney as an Agency:
A power of attorney is a delegation of authority in writing by which one person is empowered to do an act in the name of the other. The person who acts on behalf of another person (the principal) by his authority, express or implied, is called an agent and the relation between him and his principal is called agency.

Termination of a Power of Attorney:
A power of attorney can be terminated or cancelled by the principal by revoking his authority or by the power of attorney holder renouncing his authority. An agency (the authorised person to act as a POA) can be terminated by the principal (the executor) by revoking his authority or by the agent renouncing his authority, unless such revocation is prohibited under S. 202 of the Contract Act.

S. 201 of the Contract Act also states that an agency terminates, inter alia, by death of principal or agent.

Legal complications arising out of Power of Attorney.
Whether a power of attorney can be irrevocable in nature, and/or
whether an irrevocable power of attorney granted would terminate on death of a donor ?
When does a power of attorney become irrevocable?

(a) Legal provisions : (1) The Power of Attorney Act does not state when a power of attorney is irrevocable. However, in various commercial transactions, a donor gives an irrevocable power of attorney, on contractual basis, to secure the interest of the donee of the power.

(2) Under S. 4 of the (English) Powers of Attorney Act, 1971 a power of attorney is irrevocable if it is expressed to be so and is given to secure : (i) a proprietary interest of the donee of the power; or (ii) the performance of an obligation owed to the donee. Then, so long as the donee has the interest or the obligation remaining undischarged, the power cannot be revoked by the donor without the consent of the donee, or by death, incapacity, insolvency, winding up or dissolution of the donor.

(3) Illustration : In a typical Mumbai scenario, where redevelopment of property is common, A, being the owner of a piece of land over which he resides, gives B, a developer, an irrevocable power of attorney to develop such land and ultimately transfer the same in favour of a Society or Condominium or such Association of Persons. Such a power of attorney is given for a valuable consideration. In the event A dies whilst the property is in the process of being redeveloped, such an irrevocable power of attorney granted by A to B cannot be revoked or terminated and B is entitled to complete such redevelopment.

(4) Where a power of attorney is given for a valuable consideration and expressed to be irrevocable, or is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable.

(b) Authority coupled with interest : (1) S. 202 of the Contract Act lays down the rule that ‘authority coupled with interest is irrevocable’. (2) S. 202 of the Contract Act states that "where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."

Illustrations :
(a) A gives authority to B to sell A’s land, and to pay himself out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(4) In the aforesaid illustrations, authority is given for the purpose of being a security for a debt, therefore it is irrevocable.

(5) Where the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. (6) To make the authority irrevocable, the agent must have an interest in the property which forms the subject matter of the agency. Where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of any express contract, be terminated to the prejudice of such interest.

(7) The mere fact that a power is declared in the instrument granting it to be irrevocable, does not make it irrevocable.

(8) The exceptional case dealt with here is that in which the authority or power is coupled with an interest in the thing on which power is to be exercised.

(9) Instead of the words ‘authority coupled with an interest’ used in the English and American systems of law, the Section contains the words ‘the agent has himself an interest in the subject mater of the agency.’ Under the English law, what is meant by an authority coupled with an interest is this — that where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable. [Clerk v. Laurie, 2 H & N 199]. (10) In Prahlad v. T. F. Kumari, AIR 1956 Pat 233 where, under a document drawn in the form of a power of attorney, a lady agreed that the debts raised by X for her should be realised out of the collections of a particular estate and the effect of the document though not described as one of agency was to create an agency in favour of X, it was held that the agency was one coupled with an interest and therefore irrevocable and in substance amounted to an allocation of the funds to be appropriated towards the repayment of the debts.

(11) Similarly, when an agent is employed to enter into any contract, or do any other lawful act involving personal liability, or is expressly or impliedly authorised to discharge such liability on behalf of the principal, the authority becomes irrevocable as soon as the liability is incurred by the agent [Read v. Anderson, (1884) 13 QBD 779], and where an agent is authorised to pay money on behalf of his principal to a third person, the authority becomes irrevocable as soon as the agent enters into a contract, or otherwise becomes bound to pay or hold such money to or to the use of such person [Robertson v. Fauntleroy, (1823) 8 Moore 10].

(12) So, where a principal and agent agree for valuable consideration or under a seal that the agent is to have authority, for example, to collect rents in order to secure a loan [Spooner v. Sandilands, (1848) I Y & C. Ch. 390], or to sell certain land and to discharge a debt owed to him by the principal out of the purchase money [Gaussen v. Morton, (1830) IO B & C 731], the principal thereby confers an interest on the agent, and the agency cannot be revoked unilaterally.

(13) As decided in Pestanji Mancharji Wadia v. Matchett, (1870) 7 BHC AC 10, where an agent is authorised to recover a sum of money due from a third party to the principal, and to pay himself out of the amount so recovered the debts due to him from the principal, the agent has an interest in the subject matter of the agency, and the authority cannot be revoked.

(14) Illustration : A owes B a certain sum of money. A authorises B to recover from C, the rent which C owes A, and to pay himself (B) out of the rent recovered, the debts due to him from A. Such an authority cannot be revoked by A, because such authority confers an interest on B.

(15) So also a vendor promoter of a company, who is to be paid a commission out of the money raised by the issue of shares, has a clear and direct interest in raising the capital. An underwriter who promises to buy a certain number of shares from the promoter and authorises him to make the necessary application, cannot revoke the authority, this being an authority coupled with interest. [Carmichael’s case (1896) 2 Ch. 643]

(16) "If a borrower, in consideration of a loan, authorises the lender to receive the rents of Blackacres by way of security, the authority remains irrevocable until repayment of the loan in full has been effected. This doctrine applies only where the authority is created in order to protect the interest of the agent; it does not extend to a case where the authority is given for some other reason and the interest of the agent arises later." [Cheshire on the Law of Contracts, 6th Ed.]

(17) Illustration : A (lender) has given B (borrower) a certain loan. As a security for repayment of the loan, B authorises A to receive all the rent which B is entitled to — arising out of a certain property owned by B — until such loan is repayed by B to A. Such an authority created to protect the interest of A, is irrevocable.

(18) Further, the principle applies only to cases where authority is given for the purpose of being a security or a part of the security, and not to cases where the interest of the donee arises afterwards and incidentally. In such cases there is no authority coupled with an interest; but an independent authority, and an interest subsequently arising [Garapati Venkanna v. Mallupudi Atchuta-ramanna, AIR 1938 Mad. 542].

(19) However, it is pertinent to note that mere right to remuneration or commission does not constitute an agency coupled with interest.

(20) For example, the agents for the sale of cloth who are entitled to keep for themselves any excess over rates that they might secure from purchases have no interest in the property to be sold or in the sale proceeds thereof, so as to attract S. 202 of the Contract Act [Dalchand v. Seth Hazarimal, AIR 1932 Nag. 34].

(21) In another Bombay case, it was held that the mere fact that the salary of an agent collecting rents was to be paid out of the collections, did not create an interest sufficient to make the authority irrevocable [Vishnucharya v. Ramachandra, ILR 3 Bom. 253].

(22) For instance, as held in Lakshmichand Ramchand v. Chotooram Motiram, (1900) 24 Bom. 403, the interest which the agent has in effecting a sale and the prospect of remuneration to arise therefrom, do not constitute such an interest as would prevent the termination of the agency.

(23) If any such interest were to be created for the benefit of the agent, it should be contem-poraneously provided for in the instrument of agency itself and should not only be express but also be explicit. It should not give any room for doubt, nor could it be a matter of interpretation. An agency to be irrevocable should therefore create in the agent an interest in the subject matter contemporaneously with the document wherein such agency is created and it cannot be left to chance or guess or inference.

(24) In Corporation Bank v. Lalitha H Holla, AIR 1994 Kant. 133, held : the fact whether the power of attorney is given for securing the interest of the agent, can be ascertained from the facts de hors the express terms of the contract.

(25) In Kondayya Chetti v. Narasimhulu Chetti, (1986) 20 Mad. 97, held : The interest of the agent in the subject matter of the agency may be inferred from the language of the document creating the agency, and from the course of the dealings between the parties, it need not be expressly given. It is the existence of the interest and not the mode in which it is given, that is of importance.

(26) In Mariyakutty v. Chalandian Bank Ltd., AIR 1957 TC 174, the hypothecation deed showed that the shares and the right to the dividends on the same were all charged for the amount borrowed. It was further stipulated that as long as the debt was in existence, the pledgee was authorised to receive directly from the bank any dividend declared and appropriate the same towards interest. It was held that these words clearly created an agency in favour of the pledgee in view of the hypothecation deed which clearly authorised the pledgee to represent the owner of shares with regard to receipt of dividends from the bank, and that the agency created was one contemplated in S. 202, and could not be determined at the instance of the principal alone. IV. Whether an irrevocable power of attorney would terminate on death of donor ? (a) Indian Law : (1) The Supreme Court of India, in the case of Seth Loon Karan Sethiya v. Ivan E. John, AIR 1969 SC 73, held : where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked. (b) English Law : (1) According to S. 4(1) of the (English) Powers of Attorney Act, 1971 a power of attorney is irrevocable if it is expressed to be so and is given to secure : (i) a proprietary interest of the donee of the power; or (ii) the performance of an obligation owed to the donee. Then, so long as the donee has the interest or the obligation remaining undischarged, the power cannot be revoked by the donor without the consent of the donee, or by death, incapacity, insolvency, winding up or dissolution of the donor. (2) According to S. 126 of the (English) Law of Property Act, 1925 (15 & 16 Geo. V, c.20) Powers of attorney, which are given for a valuable consideration and which are stated in the instrument creating them to be irrevocable, cannot be revoked at any time either by any thing done by the donor of the power without the concurrence of the donee, or by the death, disability, or bankruptcy of the donor of the power. Any purported revocation will be ineffective both as regards the donee and a purchaser for value. (3) Adopting the classical statement of the rule given by Wilde, C.J. in Smart v. Sandars, (1848) 5 CB 895, 917, Bowstead on the Law of Agency, 14th Edition, page 423, states as follows : "(i) Where the authority of an agent is given by deed or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. But it is not irrevocable merely because the agent has an interest in the exercise of it or has a special property in, or lien for advances upon, the subject matter of it, the authority not being given expressly for the purpose of securing such interest or advances : (ii) Where a power of attorney whenever created is expressed to be irrevocable and is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable; (iii) Authority expressed by this article to be irrevocable is not determined by the death, insanity or bankruptcy of the principal, nor . . . where the principal is an incorporated company, by its winding or dissolution, and cannot be revoked by the principal without the consent of the agent." V. Conclusion : What emerges from the above is that an irrevocable power of attorney creating an agency, wherein the agent (the donee) has an interest in the property and which forms the subject matter of such agency created for valuable consideration, the agency cannot be terminated to the prejudice of such interest, unless there is an express contract to the contrary. It can, therefore, be inferred that an irrevocable power of attorney granted in relation to a subject matter in which the donee has an interest, cannot be revoked by the donor, nor can it be terminated by the death, unsoundness of mind or insolvency of the donor to prejudice such interest created by the donor in favour of the donee.
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Disqualified directors of debarred companies may approach courts



The government’s move to debar directors of companies who have not filled annual returns for three successive years is likely to be challenged in courts citing retrospective application of Companies Act, 2013. As a general rule, law is always applicable prospectively, unless any prior date is mentioned specifically says Sumit Naib. 



According to corporate law experts, Section 164 (2) (a) of the Companies Act, 2013, which pertains to disqualification of directors due to non-filing of financials and annual returns for three years is applicable to all types of companies including private ones with effect from April 1, 2014.
      The government’s move to debar directors of companies who have not filled annual returns for three successive years is likely to be challenged in courts citing retrospective application of Companies Act, 2013. As a general rule, law is always applicable prospectively, unless any prior date is mentioned specifically says Sumit Naib.

According to corporate law experts, Section 164 (2) (a) of the Companies Act, 2013, which pertains to disqualification of directors due to non-filing of financials and annual returns for three years is applicable to all types of companies including private ones with effect from April 1, 2014. Prior to the enactment of this new section under the Companies Act 2013, the corresponding section under the Companies Act, 1956 was applicable only to public companies The Ministry of Corporate Affairs earlier this month struck off the names of around 209,000 companies from the records, found to be without any business activity, including  those that had not filed financial statements for three years or more. Subsequently the directors, or the authorized signatories, of the debarred companies have been disqualified from being appointed in any other company in that position.

As per government estimates, at least 200,00-300,000 disqualified directors shall get debarred in the process. Many directors feel the period of default being considered while issuing the list of defaulters is prior to the enactment of section 164 under Companies Act, 2013. Accordingly, such directors may approach the court seeking relief on this ground, says Naib. One could take a view that to the extent the disqualification relates to non-compliance by private companies the law was introduced only with effect from FY 2014-15, he says. However, if the director was appointed after introduction of Companies Act, 2013 and at that point such non-compliance existed he or she would still stand disqualified points out Ahmed.

Legal experts note that during introduction of new company law in 2014 the government had introduced a Company Law Settlement Scheme – a two–month window – for companies that defaulted on filing statements to come good by paying a lower fee. However for companies that took advantage of this scheme, the provisions of Section 164 (2) would apply only for prospective defaults if any, says Ahmed. As per Companies Act, 2013, any aggrieved director could apply to the National Company Law Tribunal (NCLT) within three years of debarment order If, in the opinion of NCLT, removal is not justified it may order restoration of the name of the company in the Register of Companies.

Source: https://www.unimarkslegal.com/blog/corporate-law-2/disqualified-directors-debarred-companies-may-approach-courts/ 
                                                                                                                        

                                                                                                                                                  
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INSOLVENCY AND BANKRUPTCY CODE – KEY FACTORS

INSOLVENCY AND BANKRUPTCY CODE

An effective and efficient insolvency regime is the foundation of a strong economy. Though there are several laws and forums in India deals with financial breakdown and insolvency of companies, it failed to find effective solutions and timely recovery of defaulted payments and credits. To improve Business environment in India and to gain confidence of domestic and foreign investors the GOI specially constituted ‘Bankruptcy Law Reforms Committee’ (BLRC) under Ministry of Finance. 


INSOLVENCY AND BANKRUPTCY CODE

An effective and efficient insolvency regime is the foundation of a strong economy. Though there are several laws and forums in India deals with financial breakdown and insolvency of companies, it failed to find effective solutions and timely recovery of defaulted payments and credits. To improve Business environment in India and to gain confidence of domestic and foreign investors the GOI specially constituted ‘Bankruptcy Law Reforms Committee’ (BLRC) under Ministry of Finance. The Committee introduced the Insolvency and Bankruptcy Code Bill in November 2015, replacing the existing framework of insolvency proceedings and focusing creditor driven insolvency resolution. The IBC offers a standardized, comprehensive financial condition legislation encompassing all corporations, partnerships and Sole Proprietorship. One in every of the elemental options of the Code is that it permits creditors to assess the viability of the debtors and encourage reconciliation for its revival or a speedy liquidation. The IBC creates a brand new institutional framework, consisting of insolvency professional, regulator professionals, and adjudication forum to facilitate a proper and time bound insolvency resolution process and liquidation.

INSOLVENCY AND BANKRUPTCY

Definition of Insolvency:

The condition of one who is unable to pay his debts as they fall due and his insufficiency to discharge all debts he owned in the usual course of trade and business is termed as insolvent. In a nutshell, Insolvency is the condition of having more debts than assets.

Signs of Insolvency

There are two main test for insolvency, the first test is that the company is unable to its debts as and when they need to do, the second test would be that the Company’s assets are less than its liability. One of the warning signs of insolvency would be the Company not being able to pay their debts to creditors including non-compliance with payment within the deadline. The other sign would be the creditor threatening legal action or they have commenced steps to try to liquidate the company to compensate the dues.

However, there is no single point to determine at what point a person or a company became insolvent as there are several indicators of is detected during the investigation  by insolvency professionals. A detailed analysis of the financial information would establish the exact date upon which the Company or person became insolvent.

During the investigation, the liquidator will identify the indicators of insolvency such as whether the company or a person;

• suffering recurrent losses every quarter/financial year
• failed to pay taxes and other obligations required under law
• issued dishonoured or post dated cheques
• had set-off or arrangements for his loans
• exceeding his due date of payment to creditors
• availing multiple loans intending to stabilize the business and etc.,

Bankruptcy :
Bankruptcy is a legal method of discharging individual or company’s debts and obligations to pay back money that was loaned to them. It allows people who have found themselves in deep financial trouble to be able to discharge their debts and have a fresh start.  Part III of IBC deals with insolvency resolution process and bankruptcy process relating to individuals and partnership firms. It aimed to provide an opportunity to individual debtors having assets and income lower than a specified amount and offers them a fresh start by discharging them from the qualified debts.

In earlier, the laws deals with bankruptcy of individuals was divided geographically under two different legislations being (i) The Presidency Town Insolvency Act 1909, which dealt with Calcutta, Bombay and Madras and; (ii) The Provincial Insolvency Act, 1920 for rest of India. The above acts are now repealed by the Code.

Definition of Bankruptcy

The debtor creditor can initiate the insolvency resolution and bankruptcy proceedings under Section 78(1) of the IBC. The minimum debt to initiate the process may vary upto Rs. 1 Lakh.

Section 79(3) defines bankrupt as,

  • An Individual debtor who has been adjudged as bankrupt by a bankruptcy order passed by the DRT under Sec 126 of the Code. [Sec 79(3)(a)]
  • In case of partnership firm, each of the partners of a firm, where a bankruptcy order under section 126 has been made by the DRT against the said firm. [Sec 79(3)(b)]
  • Any person adjudged as an undischarged insolvent [Sec 79(3)(c)]

STRUCTURE OF CODE

Four different forums—High Courts, Company Law Board (CLB), Board for Industrial and Financial Reconstruction (BIFR) and Debt Recovery Tribunal (DRT)—have overlapping jurisdiction, which gives rise to systemic delays and complexities in the process. The code overcomes these challenges and would reduce the burden on the courts as all litigation will be filed under the code before the National Company Law Tribunal (NCLT) for corporate insolvency and insolvency of LLPs, and before DRT for individual insolvency and insolvency of unlimited partnership firms.

IMPORTANCE OF THE CODE

IBC Considered as second most important piece of legislature, next only to the goods and services tax (GST) bill. Even though the impact of the new rules may not be visible immediately, they will have long-term implications. There was a systematic vacuum in the entrepreneurial and business eco-system that needed to be plugged. The move will also deepen the bond market in the country besides giving confidence to the creditors and investors in India and abroad.

Conclusion

Bankruptcy and Liquidation are the worst scenario which could happen to any company or Individual. However, the IBC aims to offer an alternate and timely solution is for both the debtors and creditors. It envisages a complete shift of existing ‘Debtor in possession’ to a ‘Creditor in control’ regime.  Overall, the IBC 2016 is a commendable step aimed to promote ease of doing business in India and it would definitely boost the confidence of lenders, creditors, foreign companies and at large.

Source: https://www.unimarkslegal.com/blog/property-law/insolvency-professional-lawyers/

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Lawyers in Chennai | Have you got your contracts right?

Have you got your contracts right?
Bad contracts could be detrimental to any business. Not to mention “enforcing contracts” in India is an uphill fruitless endeavor. It’s even getting worse for the small startups in the growth phase have little resources to fight legal cases when the contract goes wrong. Considering the current legal scenario which takes it own phase in delivering the justice, the start-ups can at least do is to create and govern contracts in a more deterministic manner.

Have you got your contracts right?

Bad contracts could be detrimental to any business. Not to mention “enforcing contracts” in India is an uphill fruitless endeavor. It’s even getting worse for the small startups in the growth phase have little resources to fight legal cases when the contract goes wrong. Considering the current legal scenario which takes it own phase in delivering the justice, the start-ups can at least do is to create and govern contracts in a more deterministic manner.

What would go wrong?

Any error in a contract could undermine its legality and affect the abilities of parties while enforcing it before the Court of Law or before Arbitration. The affected party by such mistake will have not option but seeks to repeal or cancel the contract. In all parts, you may end up in facing ordeal and consequently facing business delays and waste of resources.

Why Oral Contracts are cardinal sin?

Promises are part and parcel of the business cycle but it seen broken easily by the parties who swears it. Building your business takes superhuman effort and you cannot afford to believe that your business is protected based on oral assurance by your co-founders, employees, suppliers and partners. Failed promises can wind-up your business. Law strictly recognizes oral contracts and nothing else, of-course in exceptional cases court considered oral contract but you cannot afford to take that chance if you take your business seriously. Also, writing contracts with the consultation of lawyer will make you to think through issues that did not come to your mind during the initial phase.

How things could go wrong?

Imagine, as a founder you are working day and night along with your partners. Co-founders or freelancers to create your product or service visible on the market and it did not strike your mind to have a contract to protect the know-how, trademark, inventions and etc., of the products/services developed during the initial stage. Soon one of the founder or partner flips about the success of business or dispute your ownership as he gets into some other idea or misconceived thoughts. When he or she chooses to leave the venture but refuses to assign the rights of his part in the work then you will end up in losing both the Intellectual property and immovable property of your business. This scenario is very often and we have seen many start-ups dies in womb or end up in an endless legal battle. So, having no written agreement/contract, you will have no space for negotiation, ground or legal recourse and no remedy.

Negotiation and Contract – What you should watch out?

Negotiation is imperative and is a combination of proposals, counter proposal and discussions before arriving to final conclusion which finally written as a part of contract. So, watch out for these three things when you negotiate a contract:

  1. Is there is lack of clarity or ambiguous point made during the discussion hoping that it would vanish sooner or later?
  2. Is there any undisclosed term or improper data in the earlier stage of proposal which was not altered or modified before signing the contract.
  3. Is there any orally agreed terms earlier but not written in the concluded contract.

The above might sound “minor” but indeed not as such imprudence could cause major loss when a contract dispute to be decided before the Court of Law.

So, have in mind it is near to impossible to substantiate oral agreements in the absence of tangible proof. Also, if some essential term is missing in your contract then the interpretation of court might be very different from what it was actually intended in the contract. If you contract does not envisage what is failure of performance, how it attributes the breach of contract, the form of remedy, forum of dispute resolution and option to terminate if things goes wrong then you must rethink about writing one in the first place.

Making contract before shaking hands- How do you do it?

Drafting business contracts could be risky when you are not well-versed in the legal issues and laws of the land. Admittedly, law is complex and it is difficult to learn or understand as it is made of multiple statutes legislated and layered with precedents of judicial system. Therefore, it is sensible to have a competent lawyer on board to create legally enforceable contracts instead of relying the free templates of agreements.

source:http://rightsandlegal.blogspot.com/2016/06/adoption-in-hindus-adoption-hindus.html

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How to get divorce in 30 days


Divorce Law Procedures in India



How to get divorce in 30 days?

Yes! you heard it right… How to get divorce in 30 days? This is the most frequently asked question by most of the client clients to their lawyers practicing Family Law. The question is pretty much like “Sir, whatever it takes I want my divorce forthwith… Can you do it?”

So what the lawyers can say?

I will get back onto this later but let’s just have a glimpse on the divorce law in India. Divorce cases are one of Family law proceedings based on a personal law which takes into considerations of the customs, beliefs and tenets of the religion of the parties. Though the procedures of divorce varies religion to religion, the courts in India keep the litigants on the same queue no matter of their religion.

Remember… I am talking about the contested divorce case but not mutual divorce which has a standard procedures. Say, if you want to end your matrimonial life and there are list of grounds listed by law which you can choose from to file a divorce and again I am not getting into those details. You will find plethora of articles written on the grounds of divorce. Lets just assume, you have one of the grounds which you strongly hold to and you say to your lawyer with a brave face “Sir… “let’s fight it in court” expecting it handed over to you in silver plate but in fact a long-drawn battle awaits when your spouse decides to contest the case tooth and nail.

What happens in Court?

Usually, the divorce petitions are spiced up its with melancholic statements depicting awful life of the poor petitioner against the villainous spouse who ought to be motivated or manipulated or both by his/her in-laws and relatives. So, this what usually happens in family courts when you have your day in Court if with “incompetent” counsel (if you are really unlucky)

  1. Petition for divorce drafted and filed in court and gets document number after due scrutinization which would take at least 5 to 7 days.
  2. Summon issued to the other party for appearance (usually after 45 days from the date of filing of the petition) before the court to submit the response to the divorce petition.
  3. Court day 1 – Parties are called to appear before the judge.

THE JUDGE: Both Present?… okay go for mediation.

YOU: But Sir…I want the divorce imm…

YOUR LAWYER: Hushhhh…. You cannot address the judge directly… Come outside let’s talk… Outside the hall…

YOU: (with embarrassment) Sir… what is this.. Why should I need mediation when I am not even interested… and blah.. blah.. blah….

YOUR LAWYER: Hushhhh…. it is usual and mandate procedures which you must comply.. Just go inside and tell them you are not interested in mediation and by the way the lawyers are not allowed inside the mediation room and I also have an another case to handle in the adjacent court. I will be right back in a moment… You are with the pathetic face at the waiting hall sitting/standing before your spouse and in-laws who might be staring/laughing/mocking at you and they may also want to rip you into pieces if they could get a chance…

MEDIATION ROOM: Two sexagenarians (male and female) greeting you with smile/no smile and peeks into your papers and starts with their boilerplate template “So… Children what happened and why do you…) 30 minutes later you are coming out of the room finding your lawyer not there and you tried to reach him through few calls, sms, whats app messages (blue ticked but no response) and finally find him in facebook messenger (oh.. there he is…). He finally comes and

YOU: Sir… why they gave an another day for mediation that too after 45 days and you know what happened inside…

LAWYER: Hushhhh.. I know.. I know… Just leave it to me… I will do what I can.… by the way did you pay your hearing fees…

YOU: Palm face.

This is just a day one and a tip of the iceberg awaiting for more to come. What happens later is altogether a different story for which I might need to write a book. But in a nutshell.. This is what usually happens.. If you you still persist on divorce during the second day of mediation then the matter will be referred back to the court for trial and your spouse should file their version of defense against your petition and the trial commences for deposition, cross examination of both the parties and their witnesses and the final arguments in the midst of miscellaneous petitions, adjournments, court boycotts, absence of lawyers, absence of judges court holidays and etc., etc., etc., the case will gets over in 2 to 3 years in minimum assuming there is “no” transfer of cases, ex-parte orders. set-aside ex-parte petitions and orders, dismissed for default, restoration of cases, miscellaneous petitions and appeal against the miscellaneous petitions if the above all happens, then you might see the verdict in 5 to 7 years.. And, there is always an appeal before the High Court and Supreme Court and in case of facing these appeals you have the best chance of staring at your 50’s on the day your case gets over.

So, coming back to the question “How to get divorce in 30 days?”

ME: You still ask me that…

source: https://www.unimarkslegal.com/blog/family-law/how-to-get-divorce-in-30-days/

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Muslim Women's Right to Maintenance

Muslim Women's Right to Maintenance

divorced woman means a Muslim woman who was married according to Muslim law, and has been divorced by, or obtained divorce from her husband in accordance with Muslim law. - 
Iddat period means in the case of a divorced woman -
  1. three menstrual courses after the date of divorce, if she is subject to menstruation; and
  2. three lunar months after her divorce, if she is not subject to menstruation; and
  3. if she is pregnant at the time of her divorce, the period between the divorce and delivery of her child or the termination of her pregnancy whichever is earlier.

Rights
A Muslim woman at the time of divorce is entitled to the following
  1. A reasonable and fair provision and maintenance to be made and paid to her within the iddatperiod by her former husband;
  2. Where she herself maintains the children born to her before or after her divorce, reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
  3. An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
  4. All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
  5. An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law; and
  6. All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

Application
Where
  • A reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or
  • The properties referred to above have not been delivered to a divorced woman on her divorce,
She or any one duly authorized by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.
Where an application has been made by a divorced woman and the Magistrate is satisfied that-
  1. her husband having sufficient means, has failed or neglected to make or pay her within theiddat period a reasonable and fair provision and maintenance for her and the children; or
  2. the amount equal to the sum of mahr or dower has not been paid; or
  3. that the properties have not been delivered to her,
He may make an order, within one month of the date of the filing of the application, directing her former husband to:
  • Pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be
  • Make an order for the payment of such mahr or dower or
  • The delivery of such properties as referred to above to the divorced woman

Failure to Pay
If any person against whom an order has been made fails without sufficient cause to comply with the order, the Magistrate may
  1. Issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure and
  2. May sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.

Failure to Maintain Herself After Iddat Period
Where the Magistrate is satisfied that
  • A divorced woman has not re-married and
  • Is not able to maintain herself after the iddat period,
He may make an order directing such of her relatives who would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order.

Where Parents are Unable to Pay
If any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him, be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order.

Where Divorced Woman has no Relatives
Where a divorced woman is unable to maintain herself and she has no relatives as mentioned above or any one of them have not enough means to pay the maintenance ordered by the Magistrate, the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the woman resides,
  • To pay such maintenance as determined by him or,
As the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as be may specify in his order.

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Registration of A Society


Registration of A Society
Minimum 7 or more persons, eligible to enter into a contract can form society for various bona fide purposes. Under the Jammu and Kashmir Act, and Telengana Area Act, only 5 persons can form a society.
Eligibility
Besides individual, following persons are eligible to form a society by subscribing to the memorandum of a society:
  • Foreigners
  • Partnership firm
  • Limited company
  • Registered society
  • Minors not eligible
Purposes for Which A Society Can be Formed
A society can be formed for the promotion of literature, science or the fine arts or the diffusion of useful knowledge/political education or for charitable purposes. Section 20 of the principal Act specifies the following purposes for which societies may be registered under the Act:
  • Grant of charitable assistance
  • Creation of Military orphan funds
  • Societies established at the General Presidencies of India
  • Promotion of
  • Science,
  • Literature,
  • Fine Arts,
  • Instructions or diffusion of useful knowledge,
  • Diffusion of political education,
  • Foundation or maintenance of libraries or reading rooms,
  • Public museum and galleries of paintings,
  • Works of Act,
  • Collections of natural history,
  • Mechanical and philosophical inventions,
  • Instruments,
  • Designs
Formation for Profit Motive Prohibited
For a society registered under Societies Registration Act, 1860 or under the Section 25 of Companies Act, profit motive for personal use is disentitled. Whatever profit is made through the working of such a society, is accountable for, and is necessary to put back the profit in the working of such a society. The Companies Act under section 25 also prohibits any payment of any dividends of its members as part of profit earned.

Registration of Society
Place of registration
The registration of a society is to be done under the act wherever obtaining and not in the state where the benefit is claimed.
Once the persons proposing to form a society have decided upon the name of the society and have prepared a draft of the memorandum and rules and regulations the society the following procedures would have to be adopted for getting the society registered:
Signing of Memorandum of Association
All subscribers (minimum 7) should sign each page of the memorandum and the signature should be witnessed by an Oath Commissioner, Notary Public, Gazetted Officer, Advocate, Chartered Accountant, Magistrate First Class with their rubber/official stamp and complete address.
Documents required to be filed with the registrar of the society
  • Covering letter requesting for registration stating in the body of letter various documents annexed to it.
  • Memorandum of Association in duplicate along with a certified copy.
  • Rules and regulations
  • Where there is a reference to any particular existing places of worship like temple, masjid,gurdwara etc. sufficient documentary proof establishing legal competents and control of applicant society over such places should be filed.
  • Affidavit of non-judicial stamp paper of appropriate value by President or Secretary of the office.
  • Documentary proof house tax receipt, rent receipt in respect premises shown as registered office of a society or ‘No Objection Certificate’ from the owner of the society.

Effect of Registration / Non-Registration of A Society
The Societies Registration Act, 1860 lays down procedure for registration of societies for variousbonafide purposes.
The registration gives the society a legal status and is essential
  • for opening bank accounts,
  • obtaining registration and approvals under Income Tax Act,
  • lawful vesting properties of societies, and
  • gives recognition to the society at all forums and before all authorities.
When the society is registered, it and its members become bound to the same extent, as if each member had signed the memorandum.
A society, registered under this Act, must confine its activities to the sphere embraced by its objects.
A tax imposed on a society is one imposed on the society and not on its members.
A society registered under the Act enjoys the status of a legal entity apart from the members constituting it. A society so registered is a legal person just as an individual but with no physical existence. As such it can acquire and hold property and can sue and be sued.
The society should be registered under the Act to acquire the status of juridical person.

In the absence of registration, all the trustees in charge of the fund have alone a legal status and the society has no legal status, and, therefore, it cannot sue and be sued. A non-registered society may exist in fact but not in law. It is immaterial under the Act whether the society is registered but where the benefit is claimed, the registration of society under the Act us required. An unregistered society cannot claim benefits under the Income-tax act.
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