Divorce under Muslim Law

Introduction

Under the Muslim Law a marriage is dissolved either by the death of the husband or wife, or by divorce. After the death of a wife, the husband may remarry immediately. But the widow cannot remarry before a certain specified period called Iddat expires. Generally, both the parties to the marriage contract have an opinion for divorce, but the husbands right in this respect is much greater than that of the wife. The husband can dissolve the marriage tie at his will. A divorce can also take place by mutual agreement. But the wife cannot divorce herself from her husband without his consent. She can of course purchase her divorce from her husband and can have the marriage dissolved by Tafweez (delegation). Marriage may also be dissolved by judicial decree under the Dissolution of Muslim Marriage Act, 1939.

Divorce by husband/wife

A Husband may divorce in the following manner- Talaq: which is release from the marriage tie immediately or eventually. Ila: where a husband of sound mind takes a vow that he will abstain from all relationship from his wife. Zihar: where husband sane and adult compares his wife to his mother or any other female within the prohibited degrees. A wife may divorce in the following manner- Talaqetafwiz: talaq by the wife under the husbands delegated power.

Divorce by judicial decree under dissolution of The Muslim Marriage Act,1939

Following are the grounds on which a marriage may be dissolved under the Marriage Act. Lian: Where the wife is charged with adultery and the charge is false.She can file a regular suit for dissolution of marriage as a mere application to the court is not the proper procedure. Fask: The cancellation, abolition, revocation, annulment. Before the passing of the dissolution of Marriage Act, Muslim women could only apply for the dissolution of their marriage under the doctrine of Fask. WOMANS RIGHT TO DIVORCE UNDER THE DISSOLUTION OF MUSLIM MARRIAGE ACT. 1939 A Muslim woman may file for divorce on the following grounds- That the whereabouts of the husband have not been known for a period of 4 years That the husband has neglected or has failed to provide for her maintenance for a period of two years. That the husband has been sentenced to imprisonment for a period of seven years or upwards. That the husband has failed to fulfill his marital obligation for a period of three years. That the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease. That the husband was impotent at the time of marriage and continues to be so. The women, having being given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18.

Triple divorce

Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.

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Divorce Under Hindu Marriage Act

Introduction

As per the ancient Hindu laws there was no place for Divorce and it was with the codification of Hindu law that the first grounds for the new age laws were laid down. Divorce between two persons married under the Hindu Marriage Act is also governed by the same act.

Grounds for Divorce

A petition for divorce may be presented by either the husband or wife for dissolving the marriage on the following grounds: That the other party has after the marriage had voluntary sexual intercourse with any other person; or has after the marriage treated the petitioner with cruelty has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition, has ceased to be a Hindu by conversion to another religion, has been incurably of unsound mind or has been continuously or intermittently from a mental disorder that the petitioner cannot reasonably be expected to live with such a person, has been suffering from a virulent and incurable form of leprosy, has been suffering from venereal disease in a communicable form has renounced the world by entering any religious order. Has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive.

Additional Grounds for Divorce by Wife

In addition to the grounds stated above a wife may also present a petition for the dissolution of her marriage on the following grounds. Where the marriage was solemnized before the commencement of this Act, and the husband had married again before such commencement or that any other wife of the husband whom he had married before such commencement was alive at the time of the marriage. (In such a case its necessary that the other wife is alive at the time of presentation of the petition). That the husband has after the marriage been guilty of rape, sodomy or bestiality. That in a suit under S.18, Hindu Adoption and Maintenance Act, 1956 or in a proceeding under S. 125 Code of Criminal Procedure, 1973, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife not withstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards. That her marriage whether consummated or not was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years. NO PETITION FOR DIVORCE CAN BE FILED BY EITHER PARTY UNLESS ONE YEAR HAS ELAPSED SINCE THE DATE OF MARRIAGE.

Divorce by mutual consent

Where both the parties mutually agree that they want to divorce a petition may be presented on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Thereafter both the parties have to make a motion to the court not earlier than 6 months and not later than 18 months from the date of presentation of the petition and the court after hearing the parties and on being satisfied will pass a decree of divorce.

Filing of Petition

Every petition shall be present to the District Court within the jurisdiction of which The marriage was solemnized. The other party at the presentation of the petition resides; or The parties to the marriage last resided; Where the petitioner is residing at the time of presentation of the petition in case the other party is residing outside the territories to which the Act extends or has not been heard of as being alive for a period of seven years or more. WHAT A PETITION SHOULD CONTAIN Every petition presented should contain the following details The facts on which the relief claimed is based. That the petition is not presented in collusion between both the parties. The statements contained in the petition shall be verified by the petitioner or some other competent person source:helplinelaw.com

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Types of Suits

Introduction

Suits of civil nature falls into various categories, depending on the nature of suits, or status of person filing the suit etc. These categories in brief are as follows: Suits By Or Agents Govt./ Public Office Suits By Or Against Military/Naval Men/Airmen Suits By Or Against Corporations Suits By Or Against Firms And Persons Carrying On Business In Names Other Than Their Own. Suits By Or Against Trustees, Executors and Administrators. Suits By Or Against Minors And Persons Of Unsound Mind Suits By/Against Persons Of Unsound Mind Suits Relaing To Matters Concerning The Family Summary Procedure. (Suit Relating To Bills Of Exchange, Hundis, Promissory Notes Etc.) How is Summary Suit Instituted

Suits By or Agents Govt./Public Office

Where the Govt. or Public Officer in official capacity is plaintiff (one who files the suit), or the defendant (against whom the suit is filed), such Authority shall be named as "Union of India" or " State Govt. of (State Concerned) or The " Name & designation " of public officer. In case, the suit is filled against a public officer in his/their official capacity, the appropriate govt. shall also be made a party to the suit. In such case, a two months prior notice has to (sec 80) be served on the Govt./public officer, in case if/he is defendant having regard as--- as to who the party is, the notice shall be served on the following: In case of Central Government, to it's secretary In case of State Government, to it's secretary, or the collector of the district. In case of public officer, to him at his office. However, in case of urgent basis/relief, the suit may be instituted against Govt./public officer, after taking permission of the court. The court is required to allow a reasonable time to the Government, to communicate the subject matter of the suit through proper channel so as to enable the Govt. to accordingly instruct the Govt. pleader/Counsel appearing on it's behalf. The court at its discretion may also extend such time. However such time should not exceed 2 months in aggregate. Where the Govt. undertakes the defence of such public officer, it shall authorise it's pleader to appear in the court, and the pleader shall make an application in that regard to the Court. If no such application is made by the pleader within the time fixed by the court, the case shall proceed as if between private parties. However, in all cases against the Govt./public officer the endeavor of the court shall be to assist the parties to arrive at an amicable settlement if possible at the first instance and for that the court is empowered to adjourn the proceedings for a reasonable period of time in which attempts at settlement may be made by the parties.

Suits By or Against Military/Naval Men/Airmen

A suit may be instituted against any officer employed by any of the Armed forces; i.e. Navy, Military or Airforce in their personal capacity and it shall proceed in the same manner as between two private parties.

Suits By or Against Corporations

In suits against a corporation ( Companies : Private or public ), the summons are to be served either on the secretary, or any of the directors or principal officer of the corporation or may be sent by registered post or personally served at the registered office of the corporation. If the corporation does not have any registered office then the service shall be made at any place where the corporation carries on it's business. Any documents concerned with the suit ( by or against the corporation ) can be signed/verified by the following persons on behalf of the corporation: The Secretary Any of it's Director Any Principal officer Who are conversant with the facts and circumstances of the suit. The court is empowered to direct personal appearance of any of the above named officer at any stage of the suit, to answer questions relating to the suit.

Suits By or Against Firms and Persons Carrying on Business in Names Other Than Their Own.

A suit may be instituted by or against any 2 or more persons claiming to be partners in a partnership firm in the name of the firm provided such persons, were partners in the firm on the date when the cause of action occurred. Any party to such a suit may apply to the court for a statement of the names & addresses of all the partners of the firm as on the date of occurrence the cause of action. The court shall direct such a statement to be furnished and verified in a specific manner. The proceedings in the suit shall then continue in the firm's name but the final decree shall contain the names of the partners and all consequences shall follow as if the suit has been against the partners individually. Also the partners will appear individually in their own names in all court proceedings. Similarly, a suit may also be instituted by or against any person or any Hindu, Undivided family, carrying on any business in a name other than his own name, in the same manner as against a partnership firm. When two or more persons are surd in the name of the firm and any of them dies, during the pendency of the suit or before institution of the suit then it is not necessary to make his legal representative a party to the suit. However, the legal representative can make an application, to be made a party and can also enforce any claim against the surviving partners. A partner served summons can appear in the court under protest that he was not a partner of the firm when the cause of action accrued and he can apply to the court for determination of such a question any time before the date of hearing and final disposal of the suit.

Suits By Or Against Trustees, Executors and Administrators.

In cases where a suit has been instituted regarding a property between persons beneficially interested in the property and some third party, and the property, concerned is vested in a trustee, executor or administrator, then the persons, beneficially interested in the property shall be represented by the trustee/executor/administrator and the persons interested may not be made parties to the suit. In case there are more than one trustee / administrator or executors to a property then in case a suit has been filed against one, others shall also be made parties to it. However, those executors who are unable to prove their testator's will or who are outside India are not required to be made parties.

Suits By or Against Minors And Persons of Unsound Mind

Since a Minor is not capable of entering into a contract, even suit, which is instituted by him, will be filed in his name by his "next Friend", i.e. any other person who has attained majority in some way. Such " Friend" should be closely related to the minor so as to bonafidely ascertain the interests of the minor, for instance father, mother, brother, sister etc, or guardian. He does not become a party to the suit but merely represents minor's interest. To avoid any discourage vexatious--- litigation by such person, the code provides that, the courts can order the next friend to give security for payment of all the costs incurred or likely to be incurred by the defendant. Any person can be appointed, as the " Friend" or guardian of the minor as long as he is of sound mind, has attained majority, has no interests adverse to that of the minor's and he is not defendant or plaintiff in the suit. Where there is neither any guardian appointed by a competent Authority, nor any other person fit and willing to act as a guardian for the suit, the Court can appoint any of its officers as a guardian to the suit. The court may direct the costs incurred by such officer in his capacity as guardian to be borne by: Any of/or all parties to the suit, or Out of property of the minor, or Out of Any fund in the court in which minor, is interested. A " Friend" is not allowed to enter into any agreement/compromise on the minor's behalf, which may be in reference to the particular suit unless the court permits him to do so. A "next friend" may retire but not before, he first recommends another person to take his place and gives security for all the costs that have already been incurred in the suit. ON ATTAINING MAJORITY: On attaining majority, it shall be at the option of the minor plaintiff whether to proceed with the suit or opt out. In case he opts to proceed with the suit, he will have to make an application for discharge of " Friend", and permission to proceed on own name. In case he opts out, he can apply for an order to dismiss the suit/application on making payment of costs incurred by the opposite party or which has been paid by his next friend.

Suits By/Against Persons of Unsound Mind

Similar provisions and rules apply to the persons of unsound mind as those which apply to minors, whether a person develops a mental illness/infirmity during the pendency of suit or before it.

Suits Relaing to Matters Concerning The Family

The kinds of suits relating to family are:- A matrimonial suit claiming any matrimonial relief including the declaration of validity of a marriage or matrimonial status of any person. A suit claiming a declaration of legitimacy of any person. A suit relating to custody/guardianship of a minor/any person of family under a disability. A suit for maintenance A suit for declaring validity or effect of an adoption A suit for relating to wills, intestate and succession A suit relating to any matter concerning family in respect of which the parties are subject to their personal law. In all such cases, it shall be first the duty of court to make an endeavor to settle such types of suits, to which this order applies. (O32A R3) "Family" for such suits shall include the following: A man and his wife living together plus any child or children born of them or either of them. A man not having a wife or not living with his wife, maintaining any child or children, born of him or otherwise. A woman and have husband/not living with her husband, maintain any child/children being born of her or otherwise. A man or woman living with his/her brother, ancestor or any close relative, related to him/her by blood. Any combination of one or more of the above.

Summary Procedure. (Suit Relating To Bills of Exchange, Hundis, Promissory Notes Etc.)

The important feature of "summary suit", is that, here the Defendant is not allowed to defend the suit, unless he takes the permission from court.  Defendant is allowed to defend himself only if according to the affidavit filed by him, it is must for the plaintiff to prove charges against him. If by affidavit by Defendant, it appears that he has no defense, then court will decline him the permission and pass necessary orders in favor of plaintiff. Summary procedure applies to following kinds of suits:- Suits upon bills of Exchanges, hundies or promissory notes Any suit filed by the plaintiff for recovery of a debt/money payable by the defendant according to a written contract, or In case of an enactment wherein the amount to be recovered is a fixed amount of money , or a debt other than a penalty, or A guarantee, where the claim against the principal is in respect of a debt or for money only. The object behind provision of summary procedure was to ensure a speedy trial for recovery of money in cases where the defendant has no defence and thus any unreasonable delay sought to be caused is eliminated.

How is Summary Suit Instituted

A summary suit is instituted by presenting a plaint in the court containing the following specification; It must mention that the suit is filed under summary procedure and below the title of the suit it should be inscribed "Under Order XXXVII of code of Civil Procedure, 1908". It must state that no relief, which does not fall within the ambit of this rule, has been claimed. Then the summons of the suit are to be issued to the defendant, which should be in prescribed from no. 4, accompanied with a copy of plaint and Annexures. When the defendant appears, he is required to enter his appearance within 10 days of receipt of summons. On default of his appearance it is assumed that he has admitted the allegations made in the plaint and the plaintiff gets entitled to a final order granting him the sum as mentioned in the plaint alongwith interest at the specified date and costs if the Court thinks it appropriate. (Rule 2) Where the defendant enters an appearance, the plaintiff is required to serve on him the summons for judgement in Form no. "4A) accompanied with an affidavit verifying the cause of action and the amount which is claimed in the plaint, and a statement to the effect that there is no defense to the suit. Then, the defendant may apply for leave to defend the suit within 10 days from the date of service of summons, disclosing by way of an affidavit, such facts which he believes to be sufficient to entitle him of the right to defend himself. The Court shall not refuse permission to the defendant to defend the suit unless it believes that the disclosure by the defendant does not show that he has any substantial defense to raise or that it is frivolous. Also, where the defendant admits part of the amount claimed by the plaintiff, then the court shall permit the defendant to defend only, when such admitted amount is deposited by the defendant in the court. The court may also require the plaintiff or the Defendant to deposit some security amount by way of costs, depending on the facts, i.e. to ensure the Bonafide of plaintiff or Defendant. Source:helplinelaw.com

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Consumer Protection In India

Introduction

Industrial development in the field of manufactured goods has led to the influx of various consumer goods into the Indian market to cater to the needs of the consumers and a variety of services such as banking, financing, insurance, transport, housing construction, entertainment have been made available to the consumers. In order to protect the consumers from exploitation and to save them from adulterated and substandard goods and deficient services the Consumer Protection Act came into force on 15th April, 1986 and it applies to the whole of India except the State of Jammu and Kashmir.

Who is a Consumer

The definition of consumer under the Consumer Protection Act would include: A person who has bought goods for consideration, Any person other than the buyer who uses the goods with the approval of the buyer, A person who hires any services for consideration1, Any other person who uses the services with the approval of the hirer of services’ Beneficiary of services. Any person who obtains the goods for resale or commercial purposes is not a consumer. But a person buying goods for self employment is a consumer.

Who can file a complaint

Following persons can file a complaint under the Act: a consumer; or any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force, or the Central Government or any State Government, one or more consumers, where there are numerous consumers having the same interest. A complaint on behalf of the public which consists of unidentifiable consumers cannot be filed under the Act. An unregistered association cannot file a complaint under the Act.

Complaint

A complaint must contain any of the following allegations: An unfair trade  practice or a restrictive trade practice has been adopted by any trader; The goods bought by him or agreed to be bought by him suffer from one or more defects; The services hired or availed of suffer from deficiency in any respect; A trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods. Goods which will be hazardous to life and safety when used are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods.

Limitation Period for filing Complaint

A complaint should be filed at the earliest but not later than two years from the date on which the cause of action arose. However the Court may entertain the complaint after a period of 2 years if the complainant is able to satisfy the court that there was sufficient cause for the delay.

Remedies

A consumer can seek for the following remedies under the Act: to remove the defect pointed out by the appropriate laboratory from the goods in question; to replace the goods with new goods of similar description which shall be free from any defect; to return to the complainant the price, or, as the case may be, the charges paid by the complainant; to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party; to remove the defects or deficiencies in the services in question; to discontinue the unfair trade practice or the restrictive trade practice or not to repeat it; not to offer the hazardous goods for sale; to withdraw the hazardous goods from being offered for sale; to provide from adequate costs to complainant.

Consumer Protection Councils

The Consumer Councils have been created to advise and assist the consumers in seeking and enforcing their rights. In India, there are Consumer Councils both at Center level and State level. The State Government shall establish a District Consumer Protection Council for every district. These councils work towards the promotion and protection of consumers. They make investigations and give publicity to the matters concerning consumer interests, take steps towards furthering consumer education and protecting consumer from exploitation, advice the Government in the matter of policy formulation keeping consumer interest as pivotal concern, etc. Although their suggestions are re commendatory in nature, but they have significant impact in policy making.

Objects of the Consumer Council

The objects of the Central Council shall be to promote and protect the following rights of the consumers: The right to be protected against the marketing of goods and services which are hazardous to life and property; The right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, as the case may be so as to protect the consumer against unfair trade practices; The right to be assured, wherever possible, access to a variety of goods and services at competitive prices; The right to be heard and to be assured that consumer's interests will receive due consideration at appropriate forums; The right to seek readdress against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers; and The right to consumer education.

Consumer Protection Forums

The Consumer Protection Act provides three tier machinery for redressal of consumer grievances: District Consumer Disputes Redressal Forums At the lowest level are the District Forums and these are established in each District and have jurisdiction to entertain complaints where the value of goods or services and the compensation if any, claimed does not exceed Rs.20, 00, 00 (Twenty Lakhs) and a complaint can be filed in a District Forum within the local limits of which: the opposite party resides or carries on his business or works for gain or where the cause of action arises. State Consumer Disputes Redressal Commission The State Consumer Disputes Redress Commission is established in each state and these have jurisdiction to entertain complaints where the value of goods or services and the compensation if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. National Consumer Disputes Redressal Commission The National Consumer Disputes Redressal Commission has jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed exceeds rupees one crore.

Appeal

An Appeal from the order of the District Forum lies to the State Commission, against the order of the State Commission to the National Commission and against the order of the National Commission to the Supreme Court. All appeals are to be filed within 30 days of the order appealed against and are to be accompanied by a certified copy of the order. Period of 30 days is counted not from the date of order but from the date when the order is communicated to the appellant.

Penalties for non-compliance

Any person who fails or omits to comply with the order of the District Forum, or State Commission, or the National Commission, as the case may be, shall be punished with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousands rupees but which may extend to ten thousand rupees, or with both.

Fee for making complaints before District Forum

Every complaint filed under the Act shall be accompanied by a fee in the form of crossed Demand Draft drawn on a nationalized bank or through a crossed Indian Postal Order drawn in favor of the Registrar of the State Commission and payable at the respective place where the State Commission or the National Commission is situated.   Source:helplinelaw.com

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Procedures of Adoption

Hindu Law:
ADOPTION by Hindus are covered under The Hindu Adoptions Act which came into effect from 21st December, 1956. This Act applies to Hindus, Buddhists, Jainas and Sikhs and to any other person who is not a Muslim, Christian, Parsi or Jew by religion
Requirements for a valid Adoption
The adoption cannot be taken place unless the parties to the adoption qualified as under: RIGHTS OR CAPACITIES OF A PERSON TO ADOPT A CHILD CAPACITY OF MALE In case of Hindu Male, he must be of sound mind and shall not be a minor, he must have the capacity to take a son or daughter in adoption. Provided that if such person has a wife living, he shall not adopt except with the consent of his wife, unless his wife has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.  If a person has more than one wife living at the time of adoption the consent of all the wives is necessary unless the consent of one of them is unnecessary for any of the reasons specified in the preceding provision. CAPACITY OF FEMALE Any female Hindu who is of sound mind who is not a minor, and who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind, has the capcity to take a son or daughter in adoption. Where the woman is married it is the husband who has the right to take in adoption with the consent of the wife. THE PERSON GIVING A CHILD IN ADOPTION HAS THE CAPACITY/RIGHT TO DO SO: No person except the father or mother or guardian of the child shall have the capacity to give the child in adoption. The father alone if he is alive shall have the right to give in adoption, but such right shall not be exercised except with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is unknown - the guardian of the child may give the child in adoption with the previous permission of the court. The court while granting permission shall be satisfied that the adoption is for the welfare of the child and due consideration will be given to the wishes of the child having regard for the age and understanding of the child. The court shall be satisfied that no payment or reward in consideration of the adoption except as the court may sanction has been given or taken. THE PERSON CAN BE ADOPTED No person can be adopted unless he or she is a Hindu; he or she has not already been adopted; he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; he or she has not completed the age of fifteen years unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. OTHER CONDITIONS FOR A VALID ADOPTION ARE FULFILLED if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son living at the time of adoption if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter living at the time of adoption; if the adoption is by a male and the person to be adopted is a male, the adoptive father is at least twenty one years older than the person to be adopted; if the adoption is by a female and the person to be adopted is a male, the adoptive mother s at least twenty one years older than the person to be adopted; the same child may not be adopted simultaneously by two or more parents; the child to be adopted must be actually given and taken in adoption with an intent to transfer the child from the family of birth.
Effect of valid adoption
An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption. However any property which vested in the adopted child shall continue to vest in such person subject to the obligations if any attached to the ownership of such property including the obligation to maintain relatives in the family of his or her birth. Similarly the adopted child shall not divest a person of any estate which vested in him or her before adoption. Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or will. The personal laws of Muslims, Christian, Parsis and Jews in India do not contain any provision of adoption. However these persons can adopt the children from orphanage by obtaining permission from the court under the Guardians and Wards Act .
Registration
The adoption deed is not required to be registered (except in Uttar Pradesh). Except where it declares or reserves an interest worth Rs. 100 or more for a third person in an immovable property. However authority to adopt is required to be registered under section 17(3), Indian Registration Act.  Adoption-Others Muslims Adoption is the transplantation of a son from the family in which he is born, in to another family by gift made by his natural parents to his adopting parents. Islam does not recognise adoption. In Mohammed Allahdad Khan v. Mohammad Ismail it was held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System. Acknowledgement of paternity under Muslim Law is the nearest approach to adoption. The material difference between the two can be stated that in adoption, the adoptee is the known son of another person, while one of the essentials of acknowledgement is that the acknowledgee must not be known son of another. However an adoption can take place from an orphanage by obtaining permission from the court under Guardians and wards act. Christians, Parsis and Jews The personal laws of these communities also do not recognize adoption and here too an adoption can take place from an orphanage by obtaining permission from the court under Guardians and wards act. Source: helplinelaw.com

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Cell Phone numbers of DIstrict Tahsisdars in Tamil Nadu

I. CHENNAI

1 Fort-Tondiarpet 94450 00484
2 Purasawakkam-Peramb9u4r 450 00485
3 Egmore-Nungambakkam94450 00486
4 Mylapore-Triplicane 94450 00487
5 Mambalam-Guindy 94450 00488

II. TIRUVALLUR

6 Ambattur 94450 00489
7 Ponneri 94450 00490
8 Gummudipoondi 94450 00491
9 Thiruthani 94450 00492
10 Pallipattu 94450 00493
11 Thiruvallur 94450 00494
12 Uthukottai 94450 00495
13 Poonamallee 94450 00496

III. KANCHEEPURAM

14 Kancheepuram 94450 00497
15 Uthiramerur 94450 00498
16 Sriperumbudur 94450 00499
17 Chengalpattu 94450 00500
18 Thirkkalukunram 94450 00501
19 Tambaram 94450 00502
20 Madurantakam 94450 00503
21 Cheyyur 94450 00504

IV VELLORE

22 Arcot 94450 00505
23 Valaja 94450 00506
24 Arakkonam 94450 00507
25 Vellore 94450 00508
26 Gudiyatham 94450 00509
27 Katpadi 94450 00510
28 Tirupathur 94450 00511
29 Vaniyampadi 94450 00512

V. THIRUVANNAMALAI

30 Cheyyar 94450 00513
31 Vandavasi 94450 00514
32 Arni 94450 00515
33 Thiruvannamalai 94450 00516
34 Polur 94450 00517
35 Chengam 94450 00518

VI. VILLUPURAM

36 Kallakurichi 94450 00519
37 Sankarapuram 94450 00520
38 Thirukkoilur 94450 00521
39 Ulundurpettai 94450 00522
40 Thindivanam 94450 00523
41 Chengee 94450 00524
42 Villupuram 94450 00525
43 Vanur 94450 00526

VII. CUDDALORE

44 Chidambaram 94450 00527
45 Kattumannarkoil 94450 00528
46 Cuddalore 94450 00529
47 Panruti 94450 00530
48 Virudhachalam 94450 00531
49 Tittakudi 94450 00532


VIII. DHARMAPURI

50 Dharmapuri 94450 00533
51 Harur 94450 00534
52 Pappireddipatti 94450 00535
53 Pennagaram 94450 00536
54 Palacode 94450 00537

IX. KRISHNAGIRI 

202 Krishnagiri 94450 00538
203 Uthangarai 94450 00539
204 Pochampalli 94450 00540
205 Hosur 94450 00541
206 Denkanikottai 94450 00542


X. NAMAKKAL

64 Namakkal 94450 00543
65 Rasipuram 94450 00544
66 Thiruchengode 94450 00545
67 Paramathi-Velur 94450 00546

XI. SALEM

55 Salem 94450 00547
56 Yercaud 94450 00548
57 Valaappadi 94450 00549
58 Attur 94450 00550
59 Gangavalli 94450 00551
60 Mettur 94450 00552
61 Omalur 94450 00553
62 Sankari 94450 00554
63 Edappadi 94450 00556

XII. NILGIRI

84 Gudalur 94450 00557
85 Pandalur 94450 00558
86 Uthagamandalam 94450 00559
87 Kuntha 94450 00560
88 Kothagiri 94450 00561
89 Coonoor 94450 00562

XIII ERODE

77 Erode 94450 00563
78 Perundurai 94450 00564
79 Dharapuram 94450 00565
80 Kangeyam 94450 00566
81 Bhavani 94450 00567
82 Gobichettiapalayam 94450 00568
83 Sathyamangalam 94450 00569

XIV. COIMBATORE

68 Coimbatore(South) 94450 00570
69 Coimbatore(North) 94450 00571
70 Mettupalayam 94450 00572
71 Palladam 94450 00573
72 Thirupur 94450 00574
73 Avinashi 94450 00575
74 Pollachi 94450 00576
75 Valparai 94450 00577
76 Udumalaipettai 94450 00578

XV. DINDIGUL

90 Dindigul 94450 00579
91 Natham 94450 00580
92 Nilakottai 94450 00581
93 Palani 94450 00582
94 Oddanchatram 94450 00583
95 Vedasedur 94450 00584
96 Kodaikanal 94450 00585

XVI. MADURAI

102. Madurai(North) 94450 00586
103 Madurai(South) 94450 00587
104 Melur 94450 00588
105 Vadipatti 94450 00589
106 Usilampatti 94450 00590
107 Thirumangalam 94450 00591
108 Peraiyur 94450 00592

 XVII THENI

97 Periakulam 94450 00593
98 Theni 94450 00594
99 Andipatti 94450 00595
100 Uthamapalayam 94450 00596
101 Bodinayakanur 94450 00597
18 Karur 109 Karur 94450 00598
110 Aravakurichi 94450 00599
111 Kulithalai 94450 00600
112 Krishnarayapuram 94450 00601

XIII TRICHY

119 Tiruchirappalli 94450 00602
120 Srirangam 94450 00603
121 Manapparai 94450 00604
122 Lalgudi 94450 00605
123 Manachanallur 94450 00606
124 Musiri 94450 00607
125 Thottiam 94450 00608
126 Thuraiyur 94450 00609

XIX. PERAMBALUR

113 Perambalur 94450 00610
114 Veppanthattai 94450 00611
115 Kunnam 94450 00612
116 Ariyalur 94450 00613
117 Udayarpalayam 94450 00614
118 Senthurai 94450 00615

XX. NAGAPATTINAM

127 Nagapattinam 94450 00616
128 Vedaranyam 94450 00617
129 Keelvelur 94450 00618
130 Thirukkuvalai 94450 00619
131 Mayiladuthurai 94450 00620
132 Tharangampadi 94450 00621
133 Seerkazhi 94450 00622

XXI .THIRUVARUR

134 Mannargudi 94450 00623
135 Needamangalam 94450 00624
136 Thiruthuraipoondi 94450 00625
137 Thiruvarur 94450 00626
138 Nannilam 94450 00627
139 Kodavasal 94450 00628
140 Valangaiman 94450 00629

XXII. TANJAVUR

141 Thanjavur 94450 00630
142 Thiruvaiyaru 94450 00631
143 Orathanadu 94450 00632
144 Kumbakonam 94450 00633
145 Thiruvidaimaruthur 94450 00634
146 Papanasam 94450 00635
147 Pattukottai 94450 00636
148 Peravoorni 94450 00637

XXIII PUDUKOTTAI

149 Kolathur 94450 00638
150 Elluppur 94450 00639
151 Alangudi 94450 00640
152 Pudukkottai 94450 00641
153 Gandarvakottai 94450 00642
154 Thirumayam 94450 00643
155 Aranthangi 94450 00644
156 Avudaiyarkoil 94450 00645
157 Manamelkudi 94450 00646

XXIV SIVAGANGAI 

158 Thirupathur 94450 00647
159 Karaikudi 94450 00648
160 Devakottai 94450 00649
161 Sivagangai 94450 00650
162 Manamadurai 94450 00651
163 Ilayankudi 94450 00652

XXV. RAMANATHAPURAM


164 Ramanathapuram 94450 00653
165 Rameswaram 94450 00654
166 Thiruvadanai 94450 00655
167 Madukalathur 94450 00656
168 Kamudhi 94450 00657
169 Paramakudi 94450 00658
170 Kadaladi 94450 00659

XXVI  VIRUDHUNAGAR 

171 Srivilliputhur 94450 00660
172 Rajapalayam 94450 00661
173 Sathur 94450 00662
174 Sivakasi 94450 00663
175 Aruppukkottai 94450 00664
176 Kaariapatti 94450 00665
177 Virudhunagar 94450 00667
178 Thiruchuli 94450 00668


XXVII THIRUNELVELI

187 Palayamkottai 94450 00669
188 Sakarankoil 94450 00670
189 Tirunelveli 94450 00671
190 Ambasamudram 94450 00672
191 Nanguneri 94450 00673
192 Radhapuram 94450 00674
193 Thenkasi 94450 00675
194 Shenkottai 94450 00676
195 Veerakeralampudur 94450 00677
196 Aaangulam 94450 00678
197 Sivagiri 94450 00679

XXVIII. TUTICORN

179 Thoothukudi 94450 00680
180 Srivaikuntam 94450 00681
181 Thiruchendue 94450 00682
182 Sathankulam 94450 00683
183 Koilpatti 94450 00684
184 Ottapidaram 94450 00685
185 Vilathikulam 94450 00686
186 Ettaiyapuram 94450 00687

XXIX. KANNIYAKUMARI

198 Thovalai 94450 00688
199 Agastheeswaram 94450 00689
200 Kalkulam 94450 00690
201 Vivavancode 94450 00691

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Domestic Violence In India

Domestic Violence in India

India has adopted the Convention on the Elimination of All Forms of Discrimination against Women and the Universal Declaration of Human Rights, both of which ensure that women are given equal rights as men and are not subjected to any kind of discrimination. The Constitution of India also guarantees substantive justice to women. Article 15 of the Constitution provides for prohibition of discrimination against the citizens on grounds of religion, race, caste, sex or place of birth or their subjection to any disability, liability or restriction on such grounds. Article 15 (3) gives power to the legislature to make special provision for women and children. In exercise of this power, the Protection of Women from Domestic Violence Act was passed in 2005.

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005

MAIN FEATURES OF THE ACT

DEFINITIONS

Domestic Violence: The term "domestic violence" includes elaborately all forms of actual abuse or threat of abuse of physical, sexual, verbal, emotional and economic nature that can harm, cause injury to, endanger the health, safety, life, limb or well-being, either mental or physical of the aggrieved person. The definition is wide enough to cover child sexual abuse, harassment caused to a woman or her relatives by unlawful dowry demands, and marital rape.

The kinds of abuse covered under the Act are:

1. Physical Abuse-
   1. an act or conduct causing bodily pain, harm, or danger to life, limb, or health;
   2. an act that impairs the health or development of the aggrieved person;
   3. an act that amounts to assault, criminal intimidation and criminal force.
2. Sexual Abuse-
   1. any conduct of a sexual nature that abuses, humiliates, degrades, or violates the dignity of a woman. 
3. Verbal and Emotional Abuse-
   1. any insult, ridicule, humiliation, name-calling;
   2. insults or ridicule for not having a child or a male child;
   3. repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
4. Economic Abuse-
   1. depriving the aggrieved person of economic or financial resources to which she is entitled under any law or custom or which she acquires out of necessity such as household necessities, stridhan, her jointly or separately owned property, maintenance, and rental payments;
   2. disposing of household assets or alienation of movable or immovable assets;
   3. restricting continued access to resources or facilities in which she has an interest or entitlement by virtue of the domestic relationship including access to the shared household.
5. Domestic Relationship: A domestic relationship as under the Act includes live-in relationships and other relationships arising out of membership in a family.
6. Beneficiaries under the Act:
   1. Women: The Act covers women who have been living with the Respondent in a shared household and are related to him by blood, marriage, or adoption and includes women living as sexual partners in a relationship that is in the nature of marriage. Women in fraudulent or bigamous marriages or in marriages deemed invalid in law are also protected.
   2. Children: The Act also covers children who are below the age of 18 years and includes adopted, step or foster children who are the subjects of physical, mental, or economical torture. Any person can file a complaint on behalf of a child.
   3. Respondent: The Act defines the Respondent as any adult male person who is or has been in a domestic relationship with the aggrieved person and includes relatives of the husband or male partner.

Shared Household: A shared household is a household where the aggrieved person lives or has lived in a domestic relationship either singly or along with the Respondent. Such a household should be owned or tenanted, either jointly by both of them or by either of them, where either of them or both of them jointly or singly have any right, title, interest or equity in it. It also includes a household that may belong to the joint family of which the Respondent is a member, irrespective of whether the Respondent or person aggrieved has any right, title or interest in the shared household.

RIGHTS GRANTED TO WOMEN

Right to reside in a shared household:
The Act secures a woman's right to reside in the matrimonial or shared household even if she has no title or rights in the household. A part of the house can be allotted to her for her personal use. A court can pass a residence order to secure her right of residence in the household.

The Supreme Court has ruled in a recent judgment that a wife's claim for alternative accommodation lie only against her husband and not against her in-laws and that her right to 'shared household' would not extend to the self-acquired property of her in-laws.

Right to obtain assistance and protection:A woman who is victimized by acts of domestic violence will have the right to obtain the services and assistance of Police Officers, Protection Officers, Service Providers, Shelter Homes and medical establishments as well as the right to simultaneously file her own complaint under Section 498 A of the Indian Penal Code for matrimonial cruelty.

Right to issuance of Orders:
She can get the following orders issued in her favour through the courts once the offence of domestic violence is prima facie established:

1. Protection Orders: The court can pass a protection order to prevent the accused from aiding or committing an act of domestic violence, entering the workplace, school or other places frequented by the aggrieved person, establishing any kind of communication with her, alienating any assets used by both parties, causing violence to her relatives or doing any other act specified in the Protection order.
2. Residence Orders: This order ensures that the aggrieved person is not dispossessed, her possessions not disturbed, the shared household is not alienated or disposed off, she is provided an alternative accommodation by the Respondent if she so requires, the Respondent is removed from the shared household and he and his relatives are barred from entering the area allotted to her. However, an order to remove oneself from the shared household cannot be passed against any woman.
3. Monetary Relief: The Respondent can be made accountable for all expenses incurred and losses suffered by the aggrieved person and her child due to the infliction of domestic violence. Such relief may include loss of earnings, medical expenses, loss or damage to property, and payments towards maintenance of the aggrieved person and her children.
4. Custody Orders: This order grants temporary custody of any child or children to the aggrieved person or any person making an application on her behalf. It may make arrangements for visit of such child or children by the Respondent or may disallow such visit if it is harmful to the interests of the child or children.
5. Compensation Orders: The Respondent may be directed to pay compensation and damages for injuries caused to the aggrieved person as a result of the acts of domestic violence by the Respondent. Such injuries may also include mental torture and emotional distressed caused to her.
6. Interim and Ex parte Orders: Such orders may be passed if it is deemed just and proper upon commission of an act of domestic violence or likelihood of such commission by the Respondent. Such orders are passed on the basis of an affidavit of the aggrieved person against the Respondent.

Right to obtain relief granted by other suits and legal proceedings:

The aggrieved person will be entitled to obtain relief granted by other suits and legal proceedings initiated before a civil court, family court or a criminal court.

LIABILITIES AND RESTRICTIONS IMPOSED UPON THE RESPONDENT

1. He can be subjected to certain restrictions as contained in the Protection and Residence order issued against him.
2. The Respondent can be made accountable for providing monetary relief to the aggrieved person and her children and pay compensation damages as directed in the Compensation order.
3. He has to follow the arrangements made by the court regarding the custody of the child or children of the aggrieved person as specified in the Custody order.

The Act does not permit any female relative of the husband or male partner to file a complaint against the wife or female partner.
AUTHORITIES RESPONSIBLE AND THEIR FUNCTIONS

The Act provides for appointment of Protection Officers and Service Providers by the state governments to assist the aggrieved person with respect to medical examination, legal aid, safe shelter and other assistance for accessing her rights.

Protection Officers: These are officers who are under the jurisdiction and control of the court and have specific duties in situations of domestic violence. They provide assistance to the court in preparing the petition filed in the magistrate's office, also called a Domestic Incident Report. It is their duty to provide necessary information to the aggrieved person on Service Providers and to ensure compliance with the orders for monetary relief.

Service Providers: These refer to organizations and institutions working for women's rights, which are recognized under the Companies Act or the Societies Registration Act. They must be registered with the state government to record the Domestic Incident Report and to help the aggrieved person in medical examination. It is their duty to approach and advise the aggrieved person of her rights under the law and assist her in initiating the required legal proceedings or taking appropriate protective measures to remedy the situation. The law protects them for all actions done in good faith and no legal proceedings can be initiated against them for the proper exercise of their powers under the Act.

Court of first class Judicial Magistrate or Metropolitan Magistrate: This shall be the competent court to deal with cases of domestic violence and within the local limits of this court, either of the parties must reside or carry on business or employment, or the cause of action must have arisen. The Magistrate is allowed to hold proceedings in camera if either party to the proceedings so desires.

General duties of Police Officers, Service Providers and Magistrate: Upon receiving a complaint or report of domestic violence or being present at the place of such an incident, they are under a duty to inform the aggrieved person of:

1. her right to apply for obtaining a relief or the various orders granted under the Act;
2. the availability of services of Service Providers and Protection Officers;
3. her right to obtain free legal services; and
4. her right to file a complaint under Section 498 A of the Indian Penal Code.

Counselors: The Magistrate may appoint any member of a Service Provider who possesses the prescribed qualifications and experience in counseling, for assisting the parties during the proceedings.

Welfare experts: The Magistrate can appoint them for assisting him in discharging his functions.

In charge of Shelter Homes: The person in charge of a shelter home shall provide shelter to the aggrieved person in the shelter home upon request made by the aggrieved person, a Protection Officer or a Service Provider on her behalf.

In charge of Medical Facilities: The person in charge of a medical facility shall provide medical aid to the aggrieved person upon request made by the aggrieved person, a Protection Officer or a Service Provider on her behalf.

Central and State Governments: Such governments are under a duty to ensure wide publicity of the provisions of this Act through all forms of public media at regular intervals, to provide awareness and training to all officers of the government, and to coordinate the services provided by all Ministries and various Departments.

PROCEDURE OF FILING COMPLAINT AND THE COURT'S DUTY

1. The aggrieved person or any other witness of the offence on her behalf can approach a Police Officer, Protection Officer, and Service Provider or can directly file a complaint with a Magistrate for obtaining orders or reliefs under the Act. The informant who in good faith provides information relating to the offence to the relevant authorities will not have any civil or criminal liability.
2. The court is required to take cognizance of the complaint by instituting a hearing within three days of the complaint being filed in the court.
3. The Magistrate shall give a notice of the date of hearing to the Protection Officer to be served on the Respondent and such other persons as directed by the Magistrate, within a maximum period of 2 days or such further reasonable time as allowed by the Magistrate.
4. The court is required to dispose of the case within 60 days of the first hearing.
5. The court, to establish the offence by the Respondent can use the sole testimony of the aggrieved person.
6. Upon finding the complaint genuine, the court can pass a Protection Order, which shall remain in force till the aggrieved person applies for discharge. If upon receipt of an application from the aggrieved person, the Magistrate is satisfied that the circumstances so require, he may alter, modify or revoke an order after recording the reasons in writing.
7. A complaint can also be filed under Section 498 A of the Indian Penal Code, which defines the offence of matrimonial cruelty and prescribes the punishment for the husband of a woman or his relative who subjects her to cruelty.

PENALTY/PUNISHMENT

1. For Respondent: The breach of Protection Order or interim protection order by the Respondent is a cognizable and non-bailable offence. It is punishable with imprisonment for a term, which may extend to one year or with fine, which may extend to twenty thousand rupees or with both. He can also be tried for offences under the Indian Penal Code and the Dowry Prohibition Act.
2. For Protection Officer: If he fails or does not discharge his duties as directed by the Magistrate without any sufficient cause, he will be liable for having committed an offence under the Act with similar punishment. However, he cannot be penalized without the prior sanction of the state government. Moreover, the law protects him for all actions taken by him in good faith.

APPEAL

An appeal can be made to the Court of Session against any order passed by the Magistrate within 30 days from the date of the order being served on either of the parties.

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE RULES 2005

The Act empowers the Central government to make rules for carrying out the provisions of the Act. In exercise of this power the Central government has issued the Protection of Women from Domestic Violence Rules 2005 relating to the following matters:

1. the qualifications and experience to be possessed by a Protection Officer and the terms and conditions of his service;
2. the form and manner in which a domestic incident report may be made;
3. the form and the manner in which an application for Protection Order may be made to the Magistrate;
4. the form in which an application for legal aid and services shall be made;
5. the other duties to be performed by the Protection Officer;
6. the rules regulating registration of Service Providers;
7. the means of serving notices;
8. the rules regarding counseling and procedure to be followed by a Counselor;
9. the rules regarding shelter and medical assistance to the aggrieved person;
10. the rules regarding breach of Protection Orders.

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J. Jayalalitha Disproportionate Asset Case - Judgment

J. Jayalalitha Disproportionate Asset Case - Judgment

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Formation of Trust - An Overview and Procedures

INTRODUCTION
The origin of ‘Trusts’ can be traced back to the ancient times when  human motivation to do charity and dedicate property for charitable and religious purposes found its manifestation in the form of  dharmashalas, annachatras, sadavarts, educational and medical institutions, construction of water tanks and wells, bathing ghats,implanting trees etc. with the emergence of idol worship, endowments for temples and idols came into existence.In addition to public endowments/wakfs, private trusts can also be formed for looking after the welfare,age,illness,disability or any other reason.

DEFINITION OF TRUST

As per section 3 of Indian Trust Act 1882
“A Trust is an obligation annexed to the ownership of the property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner”
Trivia : This definition has never been amended since its inception

WHY DO WE FORM A TRUST

Trust are generally, formed or created to fulfill any or more of the following Objectives:-
For discharge of the charitable and/or religious sentiments of the author of settlor of the trust, in a way that ensures public benefit;
For claiming exemption from Income tax U/s 10 or 11, as the case may be, in respect of incomes applied to charitable or religious purposes;
For the welfare of the members of the family and/or other relatives, who are dependent on the settlor of the trust;
For the proper management and preservation of a property;
For regulating the affairs of a provident fund,superannuation fund or gratuity fund or any other fund constituted by a person for the welfare of its employees;

HOW TO CREATE A TRUST

Trusts are created when the settlor of the property transfers property or provides benefits for the welfare of beneficiaries or for the usage of public purposes.
Four essential conditions are necessary to bring into being a valid trust.
The person who creates a trust (settlor) should make an unequivocal declaration binding on him.
He must transfer an identifiable property under irrevocable arrangement and totally divest himself of the ownership and the beneficial enjoyment of the income from the property .
The objects of the trust must be defined and specified.
The beneficiaries are specified.

WHO CAN CREATE A TRUST

As per Section 7 of the Indian Trusts Act, a trust may be created by every person competent to contract and by or on behalf a minor, with the permission of a principal court of original jurisdiction. Following are eligible to create a Trust.
Trust by an Hindu Undivided Family;
Trust by a Minor;
Trust by a Woman;
Association of Persons;
Company(eg: Debenture-Redemption Fund Trust for redemption of its debentures);

WHAT IS A PRIVATE TRUST

A trust is called a Private Trust when it is constituted for the benefit of one or more individuals who are, or within a given time may be, definitely ascertained. Private Trusts are governed by the Indian Trusts Act 1882. A Private Trust may be created inter vivos or by will. If a trust in created by will it shall be subject to the provisions of Indian Succession Act, 1925.
The following are the requisites for creation of a Trust:
The existence of the author/settlor of the Trust or someone at whose instance the Trust comes into existence and the settlor to make an unequivocal declaration which is binding on him.
There must be a divesting of the ownership by the author of the trust in favour of the trustee for the beneficial enjoyment by the beneficiary.
A Trust property.
The objects of the trust must be precise and clearly specified.
The beneficiary who may be particular person or persons.
Unless all the above requisites are fulfilled, a trust cannot be said to have come into existence.

WHAT IS PUBLIC TRUST

A trust is called as Public Trust when it is constituted wholly or mainly for the benefit of Public at large, in other words beneficiaries in the Public trust constitute a body which is incapable of ascertainment. The Public trusts are essentially charitable or religious trusts and are governed by the general Law. The provisions of Indian Trusts Act do not apply on Public Trusts.
Like the private trusts, public trusts may be created inter vivos or by will. The Indian Trusts Act does not apply to public trusts which can be created by general law.
There are three certainties required to create a charitable trust are as follows
a declaration of trust which is binding on settlor,
setting apart definite property and the settlor depriving himself of the ownership thereof, and
a statement of the objects for which the property is thereafter to be held, i.e. the beneficiaries.
It is essential that the transferor of the property viz the settlor or the author of the trust must be competent to contract. Similarly, the trustees should also be persons who are competent to contract. It is also very essential that the trustees should signify their assent for acting as trustees to make the trust a valid one.
When once a valid trust is created and the property is transferred to the trust, it cannot be revoked, If the trust deed contains any provision for revocation of the trust, provisions of sections 60 to 63 of the Income-tax Act will come into play and the income of the trust will be taxed in the hands of the settlor as his personal income.
The difference between a public and private trust is essentially in its beneficiaries, A private trust’s beneficiaries are a closed group, while a public trust is for the benefit of a larger cross-section having a public purpose.
However, there may be trusts which are a blend of both and are known as Public-cum-Private Trusts.

WHAT ARE PUBLIC-CUM-PRIVATE TRUSTS :

There may be certain trusts whose part of the income may be applied for public purposes and a part may go to a private person or persons, Such trusts are known as Public cum Private Trusts. Such trusts, in respect of the portion of the income going to private person or persons are assessable as private trusts and in respect of that portion of the income which is applied for public purposes, they shall be eligible for exemption under section 11 provided these trust are created before the commencement of Income-tax Act, 1961 i.e. before 1-4-1962. Public-cum-private created on or after 1-4-1963 shall not be eligible for exemption u/s 11.

DO WE HAVE TO REGISTER THE TRUST?

As per section 5 of the Indian Trusts Act, a private Trust in relation to an immovable property must be created by a non-testamentary instrument in writing, signed by the author of the trust or the trustee and registered(under Section 17 of Indian Registration Act) . Thus,registration of a trust is necessary when it is declared by a non-testamentary instrument. This registration would still be required, even if the instrument declaring the trust is exempt from registration under the Indian Registration Act.
In case of a Private Trust declared by a will,registration will not be necessary, even if it involves an immovable property. Registration will not be required, of a trust in relation to movable property.
In case of Public Trust, whether in relation to movable property or an immovable property and whether created under a will or inter vivos, registration is optional but desirable.
There are two conditions for registration of a trust namely :
An application to be made for registration in the prescribed form (Form 10A) and in the prescribed manner to the Commissioner of Income tax either before 1st July 1973 or within one year from the date on which the trust is created whichever is later
Where the total income of the trust or institution without giving effect to the provisions of section 11 & 12 exceeds 50,000/- in any previous year, the accounts of the trust or institution for that year has to be audited by a chartered accountant or any other accountant entitled to be appointed as an auditor of companies. The report of audit should be in Form No. 10B prescribed in the Income-tax Rules, 1962 and said audit report has to be furnished along with the return of income.
In case of Charitable or religious Trust in relation to an immovable property, for claiming exemption u/s. 11 of the I.T. Act 1961 it is essential that the instrument of trust is duly registered.
Registration is always desirable even if it is not statutorily required.
Following are the advantages of a Registered trust:
It becomes an official document with support and law;
Effectuates Transmutation of possession;
Easy conveyance of trust-property to the Trustee;
Advantages of a Trust
A trust can be formed for Charitable/Religious purposes which enables the settlor to discharge his sentiments for public benevolence,amelioration of human suffering,advancement of knowledge etc., in a regulated and proper way.
From taxation point of view, a charitable or religious trust enjoys several tax exemptions and benefits
Donations to eligible charitable institutions are also deductible from taxable income of the donor.
All the Industrial Big wigs have formed its own charitable trust, to channelize their donations for public benevolence through that trust, which remains under their own control. This enables them to apply the donations in a regulated manner according to their own discretion and still avail of the tax exemptions, both in respect of the donations made and also the income of the trust.
A trust can also be formed for the welfare of family members and relatives dependent upon the settlor. Besides,there is an ample scope of tax planning through private /family trusts.
The Institution of a trust enables the settlor to preserve his property from division and transfer to outsiders.

TAXATION 

Private trusts
When shares of individual beneficiaries are determinate:
The shares of all beneficiaries are liable to be assessed, either by the trustee(s) as a representative assessee or sometimes directly in the hands of the beneficiary entitled to income. The assessment is made at the rate that is applicable to total income of each beneficiary.
If the income of the trust consists of profits and gains of business, income tax is charged in the hands of trustee(s) on the whole of the income & at maximum marginal rate. This provision is not applicable, incase of a trust which has been declared by anyone exclusively for the benefit of a relative dependent on him and if this trust is the only trust so declared by him.
When individual shares of beneficiaries are indeterminate [U/s164]:
As a representative assesses, the Trustee(s) is/are liable to tax.
If the income consists of profits and gains of business, then the entire income of the trust is charged at maximum marginal rate of tax, except in cases of the a trust that has been declared by a person exclusively for the benefit of a relative dependent on him and if this trust is the only trust so declared by him.
However, the maximum marginal rate of tax is not applicable in the following cases, and the income will be chargeable to tax as if it were income of an association of persons(AOP) :-
Where none of the beneficiaries has any other income chargeable to tax under the Income Tax Act and none of the beneficiaries is a beneficiary under any other trust or
Where the relevant income or part of relevant income is receivable under a trust declared by any person by will and such trust is the only trust so declared by him or
Where the trust is a non-testamentary trust created before March 1, 1970 for the exclusive benefit of relatives of the settlor mainly dependent on him for their supporter maintenance or, where settlor is a Hindu undivided family, for the exclusive benefit of its members so dependent upon it or
Where the trust is created on behalf of a provident fund, superannuation fund, gratuity fund, pension fund or any other fund created bona fide by a person carrying on a business or profession exclusively for the benefit of persons employed in such business or profession.
In cases of (a), (b) and (c) the relevant income is taxable in the hands of trustees as if it were the total income of an association of persons, while income falling under (d) supra is exempt from tax.
Public trusts
Section 11 to 13 of the Income-tax Act, 1961 deals with taxation of Charitable Trust/Institution, in addition to following as follows
Section 11 provides the manner in which income is exempt from income-tax.
Section 12 provides the income of trust or institutions from contributions.
Section 12A provides the conditions as to registration of trusts, etc.
Section 12AA provides the procedure for registration.
Section 13 provides section 11 not to apply in certain cases.
This is applicable in following circumstances:
When the trust is created after March 31, 1962, then any part of income of the trust ensures, directly or indirectly, for the benefit of specific categories of persons like, the author of the trust, trustee or the manager of the trust, substantial contributor to the trust and also any relative of such author, trustee, etc.
Any part of the income/property of the trust is used during the relevant year, directly or indirectly, for the benefit of given categories of persons.
If the trust funds are invested in contravention of investment pattern of such funds.
Other Conditions of taxability of income of charitable & religious trusts are as follows
Filing of return of the income [U/s 139(4A)] by trustees of a charitable or religious trusts if total income of the trust exceeds the minimum amount that is chargeable to income-tax without giving an effect to provisions of Section 11 and 12.
Liability of the trustees as ‘representative assessees’ [U/s 161] wherein they are liable to tax for their representative capacity in respect of the income of trust.
U/s 80(G), deductions (or special exemptions) in respect of donations to certain funds, or charitable institutions, etc is granted. For being eligible under this section, the charitable trusts or institutions require to obtain a valid certificate by given an application to them in Form 10G
The basic condition for claiming exemption of income by the trust/institution is that “Income should be derived from the property held under a trust and the said income should be applied to charitable or religious purpose in India”.

WHAT ARE THE PRIVILEGES TO THE DONORS U/S 80G

As we already know that an NGO can avail income tax exemption by getting itself registered and complying with certain other formalities, but such registration does not provide any benefit to the persons making donations. The Income Tax Act has certain provisions which offer tax benefits to the “donors”. All NGO’s should avail the advantage of these provisions to attract potential donors. Section 80G is one of such sections.

Registration Under Section 80G
If an NGO gets itself registered under section 80G then the person or the organisation making a donation to the NGO will get a deduction of 50% from his/its taxable income. The NGO has to apply in Form No. 10G As per Annexure-29 to the Commissioner of Income Tax for such registration. Normally this approval is granted for 2-3 years.

Note: The Finance Act, 2009, has deleted the five year restriction under proviso to sub section (5) clause (vi). In other words, registration certificates issued after 1st October, 2009 can be considered as one time registration unless any specific restriction is provided in the certification itself.

Documents to be filled with form 10G

The application form should be sent in triplicate to the Commissioner of Income Tax alongwith the following documents :

copy of income tax registration certificate.
detail of activities since its inception or last three years whichever is less
copies of audited accounts of the institution/NGO since its inception or last 3 years whichever is less.
Conditions to be fulfilled under Section 80G
For approval under section 80G the following conditions are to be fulfilled :
The NGO should not have any income which are not exempted, such as business income. If, the NGO has business income then it should maintain separate books of accounts and should not divert donations received for the purpose of such business.
The byelaws or objectives of the NGOs should not contain any provision for spending the income or assets of the NGO for purposes other than charitable.
The NGO is not working for the benefit of particular religious community or caste.
The NGO maintains regular accounts of its receipts & expenditures.
The NGO is properly registered under the Societies Registration Act 1860 or under any law corresponding to that act or is registered under section 25 of the Companies Act 1956.

EXTENT OF BENEFIT

There is ceiling limit upto which the benefit is allowable to the donor. If the amount of deduction to a charitable organisation or trust is more than 10% of the Gross Total Income computed under the Act (as reduced by income on which income-tax is not payable under any provision of this Act and by any amount in respect of which the assessee is entitled to a deduction under any other provision of this Chapter), then the amount in excess of 10% of Gross Total Income shall not qualify for deduction under section 80G.
In other words, while computing the total income of an assessee and for arriving at the deductible amount under section 80G, first the aggregate of the sums donated has to be found out. Then 50 per cent of such donations has to be found out and it should be limited to 10 per cent of the gross total income. If such amount is more than 10 per cent of the gross total income, the excess will has to be ignored.
Cash payment upto Rs.10000/-

The other important change made by the Finance Act, 2012 is that any donation under section 80G has to be made otherwise than in cash, if the amount exceeds Rs. 10,000/-. In other words, donation in excess of Rs. 10,000/- under section 80G should be made through account payee bank transfers.

IILUSTRATION OF BENEFITS UNDER SECTION 80G

The persons or organisation who donate under section 80G gets a deduction of 50% from their taxable income. Here at times a confusion creeps in, that the tax advantage under section 80G is 50%, but actually it is not so. 50% of the donation made is allowed to be deducted from the taxable income and consequently tax is calculated.
The ultimate benefit will depend on the tax rates applicable to the assessee. Let us take an illustration. Mr. X an individual and M/s. Y Pvt. Ltd., a Company both give donation of Rs. 1,00,000/- to a NGO called ABC Sanga Seva. The total income for the year 2003-2004 of both Mr. X and Ms. Y Pvt. Ltd. is Rs. 2,00,000/-. Now assuming that the rates are 30% for the individuals and 40% for the Companies without any minimum exemption limit. The tax benefit would be as shown in the table :
Particulars
Mr. X
MS. Y Pvt. Ltd.
i) Total Income for the year 2003-2004 2,00,000.00 2,00,000.00
ii) Tax payable before Donation 60,000.00 80,000.00
iii) Donation made to charitable organisations 1,00,000.00 1,00,000.00
iv) Qualifying amount for deduction (50% of donation made) 50,000.00 50,000.00
v) Amount of deduction u/s 80G (Gross Qualifying Amount subject to a maximum limit 10% of the Gross Total Income) 20,000.00 20,000.00
iv) Taxable Income after deduction 1,80,000.00 1,80,000.00
v) Tax payable after Donation 54,000.00 72,000.00
vi) Tax Benefit U/S 80G (ii)-(v) 6,000.00 8,000.00
Note : The tax rates and mode of computation is not actual
DO’S & DON’TS
The Objectives of the trust should fall within the definition of a charitable activity;
Tax Registration Certificate from the income-tax commissioner should be obtained;
The Income of the trust should be applied only for the objectives of the trust;
In case the trust is not able to apply the income as specified, accumulate the balance or invest such balance only in specified securities in accordance with Income-Tax Act;
Maintain Books of accounts and get it audited from a chartered accountant;
File income-tax return of the trust regularly within the specified time limit;
Anonymous donation in excess of Rs 1 lakh or 5% of total receipts, whichever is higher, should not be accepted;
Contributions from any foreign source should be accepted only after the government approves them and if they are in compliance with the provisions of the Foreign Contribution Regulation Act;
The trust should not undertake commercial activity. In case any commercial activity is undertaken in furtherance of the trust’s charitable purpose, separate books of accounts should be maintained for it;
However, under the proposed Direct Tax Code charitable trust would be called a NGO and it is proposed to tax income of non-profit organizations at 15% on the surplus income.

CURRENT SCENARIO
Trusts today play a significant role in most financial and legal systems and are recognized under the Hague Convention. In a move to revitalize archaic laws, the government in a market boosting initiative recently announced a proposal to amend the Indian Trust Act, 1882 (“Act”) to permit all trusts to invest in shares and bonds of listed companies.
The government has exempted non-residents and private discretionary trusts from mandatory filing of income tax returns electronically. Accordingly, it has been decided that it will not be mandatory for agents of non-residents if his or its total income exceeds Rs 10 lakh to electronically furnish the return of income of non-residents for assessment year 2012-13. The existing e-filing software does not accept the return of a private discretionary trust in the status of an ‘individual’, it said, adding, e-filing of tax return in such case is not compulsory.
Disclaimer: The entire contents of this document have been developed on the basis of relevant provisions and are purely the views of the authors. Though the authors have made utmost efforts to provide authentic information however, the authors and the company expressly disclaim all and any liability to any person who has read this document, or otherwise, in respect of anything, and of consequences of anything done, or omitted to be done by any such person in reliance upon the contents of this document

Courtesy: http://rna-cs.com/

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