Procedure For Court Marriages In India

Procedure For Court Marriages In India  Court marriages are solemnized under the Special Marriage Act, 1954. Court marriage can be performed between an Indian male and a female irrespective of their caste, religion or creed. It can also be solemnized between an Indian and a foreigner. The procedure of the Court marriages does away with the rituals and ceremonies of the traditional marriages. The parties can directly apply to the Marriage Registrar for performance & registration of marriage and grant of marriage certificate. If you are looking to register your marriage in Chennai, then contact the matrimonial and family lawyers in Chennai

ESSENTIAL CONDITIONS FOR COURT MARRIAGE

There should not be subsisting valid marriage of either of the parties with any other person. The bridegroom should be of twenty-one (21) years and bride should be of eighteen (18) years of age. The parties should not be of unsoundness of mind of such a nature as to be unable to give valid consent for the marriage, or suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children, or has been subject to recurrent attacks of insanity. The parties should not fall within the degree of prohibited relationship.

PROCEDURE OF MARRIAGE WHEN BOTH PARTIES ARE HINDUS

The parties have to file a Notice of Intended Marriage in the specified form to the Marriage Registrar of the district in which at least one of the parties to the marriage has resided for a period of not less than 30 days immediately preceding the date on which such notice is given. The notice is then published/put-up by the Registrar of Marriage inviting objections, if any. After the expiration of 30 days from the date on which notice of intended marriage has been published, the marriage may be solemnized unless it has been objected by any person. The marriage may be solemnized at the specified Marriage Office. Both parties along with three witnesses are required to be present on the date of registration/Solemnization.

DOCUMENTS REQUIRED FOR COURT MARRIAGE

Application form in the prescribed format with the prescribed fee Passport Size Photographs of Marrying Persons Residential Proof of Marrying Persons. Date of Birth Proof of Marrying Persons. Residential Proof and PAN Card of Three Witnesses Death certificate or divorce decree whichever is applicable, in case one of the parties had any marriages in the past.

REGISTRATION OF MARRIAGE IN CASE BOTH THE PARTIES BELONG TO DIFFERENT RELEGIONS:

The marriage performed under the Special Marriage Act, 1954 is a civil contract and accordingly, there need be no rites or ceremonial requirements. Where either of the husband or wife or both are not Hindus, Buddhists, Jains or Sikhs, the marriage is solemnized and registered irrespective of the religion, under the Special Marriage Act, 1954. DOCUMENTS REQUIRED: Application form duly signed by both the parties. Documentary evidence of date of birth of parties. Residential proof of both the parties. Two passport size photographs of both the parties] Death certificate or divorce decrees whichever is applicable, in case one of the parties had any marriages in the past.  PROCEDURE: The parties need to file a Notice of Intended Marriage in the specified form to the Marriage Registrar of the district in which at least one of the parties to the marriage has resided for a period of not less than 30 days immediately preceding the date on which such notice is given. The notice is then published/put-up by the Registrar of Marriage inviting objections, if any. After the expiration of 30 days from the date on which notice of intended marriage has been published, the marriage may be solemnized unless it has been objected by any person. The marriage may be solemnized at the specified Marriage Office. Both parties along with three witnesses are required to be present on the date of registration/Solemnization.

COURT MARRIAGE OF AN INDIAN AND A FOREIGN NATIONAL

A marriage between parties one of whom at least is a citizen of India may be solemnized under Special Marriage Act, in India before a Marriage Registrar in India or a Marriage Officer in a foreign country. ELIGIBILITY CRITERIA: At least one of the parties should be an Indian citizen. The bride groom must be 21 years of age; the bride must be 18 years of age. Neither party has a spouse living, Neither party is an idiot or a lunatic, The parties are not within the degrees of prohibited relationship Each party involved should not have any other subsisting valid marriage. DOCUMENTS REQUIRED: Application form duly signed by both the parties. Documentary evidence of the date of birth of parties. Copy of Passport of both the parties with valid Visa. Residential Proof of both the parties. Documentary evidence regarding a stay at the district in India of one of the parties for more than 30 days (Proof of stay or report from the concerned SHO). N.O.C. or Marital Status certificate from the concerned Embassy or Consulate in India by a foreigner partner. Death certificate or divorce decree whichever is applicable, in case one of the parties had any marriages in the past. PROCEDURE: The parties to the marriage shall give notice in writing in the form specified, to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than 30 days immediately preceding the date on which such notice is given, and the notice shall state that the party has so resided. All the documents are verified at the Office of Marriage Registrar. The law of other nation shall not be in conflict with Indian laws. The notice is then published inviting objection to the marriage, if any. If no objection is made, then, on the expiry of the notice publishing period, the marriage may be solemnized. The marriage shall be solemnized in the presence of at least three witnesses. Further the Marriage Certificate is entered and is granted by the Marriage Registrar. Contact Matrimonial Lawyers in Chennai

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Solemnization Of Marriage Under Special Marriage Act 1954

INTRODUCTION

The Special Marriage Act was enacted to provide a special form of marriage by any person in India and all Indian nationals in foreign countries irrespective of the religion either party to the marriage may profess. For the benefit of Indian citizens abroad, it provides for the appointment of Diplomatic and Consular Officers as marriage officers for solemnizing and registering marriages between citizens of India in a foreign country. The Act extends to the whole of India except the state of Jammu and Kashmir and also applies to citizens of India domiciled in the territories to which this Act extends who are in the state of Jammu and Kashmir. If you need assistance to solemnize your marriage under Special Marriage Act 1954, you can contact the Matrimonial Lawyer in Chennai

CONDITIONS NECESSARY FOR A MARRIAGE

The following conditions are necessary: That neither party has a spouse living at the time of marriage. That neither party is incapable of giving a valid consent to the marriage due to unsoundness of mind. That neither party has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. That neither party has been subject to recurrent attacks of epilepsy or insanity. That the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage. That the parties are not within the degrees of prohibited relationship. However where a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnized non with standing that they are within the degrees of prohibited relationship as follows: DEGREES OF PROHIBITED RELATIONSHIP: Mother Father's widow (step mother) Mother's mother Mother's father's widow (step grand mother) Mother's mother's mother Mother's mother's father's widow Mother's father's mother Mother's father's father's widow (step great grand mother) Father's father's widow (step grand mother) Father's mother's mother That where the marriage is solemnized in the State of Jammu and Kashmir, both the parties are citizens of India domiciled in the territories to which this Act extends.

SOLEMNIZATION OF MARRIAGE

Parties who intend to get married under the Special marriage Act shall give a notice in writing in the specified form to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

NOTICE OF INTENDED MARRIAGE

A notice has to be given in writing in the form given below to the Marriage Officer of the District in which at least one of the parties to the marriage has resided for a period of not less than 30 days immediately proceeding the date on which such notice was given. NOTICE To, Marriage Officer, _______District________                We hereby give you notice that a marriage under the Special Marriage Act, 1954, is intended to be solemnized between us within three calendar months hereof. Name: Condition: Occupation: Age: Dwelling: Place of residence if present dwelling place not permanent. AB Unmarried/Widower/Divorced Witness our hands this _____ day of ___ 200_ Signed AB                   Signed CD

PUBLICATION

The notice given is then published by affixing it in some conspicuous place in the office of the Marriage Officer, and before the expiration of thirty days from the date on which the notice was published any person can object to the marriage that it would contravene any of the conditions necessary for the marriage. After the expiry of thirty days from the date on which the notice was published the marriage may be solemnized.

DECLARATION AND WITNESSES

Before the marriage is solemnized the parties and three witnesses shall sign a declaration in the form give below, and the declaration shall be counter signed by the Marriage Officer. DECLARATION MADE BY THE BRIDEGROOM     I, _________hereby declare as follows; I am at the present unmarried (or a widower or a divorcee, as the case may be) I have completed _______ years of age. I am not related to ________(the bride) within the degrees of prohibited relationship. I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to true, I am liable to imprisonment and also to fine. SIGNED__________ (BRIDEGROOM) DECLARATION MADE BY THE BRIDE I, _________hereby declare as follows; I am at the present unmarried (or a widower or a divorcee, as the case may be) I have completed_______years of age. I am not related to ________(the bridegroom) within the degrees of prohibited relationship. I am aware that, if any statement in this declaration is false, and if in making such statement I either know or believe it to be false or do not believe it to true, I am liable to imprisonment and also to fine. SIGNED__________ (BRIDE)        Signed in our presence by the aboveground ________ and __________ .So far as we are aware there is no lawful impediment to the marriage. WITNESSES SIGNED____ SIGNED____ SIGNED____ COUNTERSIGNED MARRIAGE OFFICER Dated:___day of ________200

PLACE AND FORM OF SOLEMNIZATION

The marriage may be solemnized at the office of the Marriage Officer or at such place within reasonable distance as the parties may desire upon payment of such additional fees as may be prescribed.     The marriage may be solemnized in a form, which the parties may choose to adopt. However, no marriage is complete and binding unless each party says to the other in the presence of the Marriage Officer and the three witnesses in any language understood by the parties, I_______take thee________to be my lawful wife (or husband)

CERTIFICATE OF MARRIAGE

After the marriage has been solemnized the Marriage Officer shall enter a certificate in the Marriage Certificate Book and this shall be signed by the parties to the marriage and the three witnesses and this shall be conclusive evidence of the marriage.

REGISTRATION OF MARRIAGE CELEBRATED IN OTHER FORMS

Any marriage celebrated other than a marriage solemnized under the Special Marriage Act, 1872 or under the Special Marriage Act, 1954 may be registered under Chapter III of the Act by a Marriage Officer if the following conditions are fulfilled: a ceremony of marriage has been performed between the parties and they have been     living together as husband and wife ever since neither party has at the time of registration more than one spouse living; neither party is an idiot or a lunatic at the time of registration: the parties have completed the age of twenty-one year at the time of registration; the parties are not within the degrees of prohibited relationship: the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.

PROCEDURE FOR REGISTRATION

Upon receipt of an application signed by both the parties to the marriage for the registration, the Marriage Officer shall give public notice thereof in such manner as may be prescribed and after allowing a period of thirty days for objection and after hearing any objection received within that period, shall, if satisfied that all the conditions are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the prescribed form and such certificate shall be signed by the parties to the marriage and by three witnesses.

CONSEQUENCES OF MARRIAGE UNDER THIS ACT

EFFECT OF MARRIAGE ON MEMBER OF UNDIVIDED FAMILY Where any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion marries a non-Hindu under this Act, he shall be severed from such family. However if two persons who are Hindus and get married under this Act no such severance takes place. SUCCESSION TO PROPERTY OF PARTIES MARRIED UNDER THIS ACT Notwithstanding anything contained in the Indian Succession Act, 1925 with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act. However if two persons who are Hindus get married under this Act the above provision does not apply and they are governed by the Hindu Succession Act.   source:helplinelaw.com

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How to file maintenance filed by wife before the Magistrate Court - Section 125 Of The Code Of Criminal Procedure

Introduction

The object of this provision is to provide a summary remedy to the dependent wife, children, and parents from destitution and to serve a social purpose. The right under these provisions cannot be defeated by anything in the personal law of the parties.

Who is Entitled to Maintenance

Wife if she is unable to maintain herself, Legitimate or illegitimate minor child, whether married or not, who is unable to maintain himself or herself Father or mother who is unable to maintain himself or herself,

Relief available

Where a person having sufficient means refuses or neglects to maintain the persons eligible as above:   A Magistrate of the First Class may, upon proof order such person to pay a monthly allowance at the rate not exceeding RS. 500 on the whole.   In case of a minor female married child the Magistrate may order the father to pay such maintenance, until she attains the age of majority, if the Magistrate is satisfied that the husband of such minor female child is not possessed with sufficient means.   "Minor" means a person who has not completed the age of 18 years.   "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

Where to file the application

The application for maintenance may be filed in the district where He is, i.e. where he works for gain or; He or his wife resides, or; Where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. LIMITATION There is no period of limitation prescribed for making an application for maintenance.

Exception

No wife shall be entitled to receive an allowance from her husband if: She is living in adultery, or Without any sufficient reason, she refuses to live with her husband, or They are living separately by mutual consent. However, if the husband has married another woman or keeps a mistress, it shall be considered to be just ground for the wife's refusal to live with him. Family Lawyers in Chennai

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Status Of Live In Relationships In India

INTRODUCTION

In India marriage has always been considered a sacrament. The husband and wife are considered as one in the eyes of law. The legal consequences of marriage that follow add to the sanctity of this relationship. Marriage legally entitles both the persons to cohabit; the children born out of a legal wedlock are the legitimate children of the couple; the wife is entitled to maintenance during the subsistence of marriage and even after the dissolution of marriage and many more. The benefits of marriage come with a lot of responsibilities. The marital obligations towards the spouse, towards the family, towards the children and towards the marital house are an inseparable part of the Indian marriage. To avoid the obligations of a traditional marriage and on the other hand to enjoy the benefit of cohabiting together, the concept of live in relation has come into picture. Live in relationships provide for a life free from responsibility and commitment which is an essential element of marriage. The concept of live in relationships is not new to the Indian society, the only difference is that earlier people were hesitant in declaring their status may be due to the fear of the society but now the people are openly in this kind of relationship.

WHAT IS LIVE IN RELATIONSHIP

A living arrangement in which an unmarried couple lives together under the same roof in a long term relationship that resembles a marriage is known as a live- in-relationship. Thus, it is the type of arrangement in which a man and woman live together without getting married. This form of relationship has become an alternate to marriage in metropolitan cities in which individual freedom is the top priority amongst the youth and nobody wants to get entangled into the typical responsibilities of a married life. This form of living together is not recognized by Hindu Marriage Act, 1955 or any other statutory law. Wile the institution of marriage promotes adjustment; the foundation of live in relationships is individual freedom. Though the common man is still hesitant in accepting this kind of relationship, the Protection of Women from Domestic Violence Act 2005 provides for the protection and maintenance thereby granting the right of alimony to an aggrieved live-in partner.

LEGAL STATUS OF LIVE IN RELATIONSHIP

The definition of live in relationships is not clear and so is the status of the couples in a live in relationship. There is no specific law on the subject of live in relationships in India. There is no legislation to define the rights and obligations of the parties to a live in relationships, the status of children born to such couples. In the absence of any law to define the status of live in relationships, the Courts have come forward to give clarity to the concept of live in relationships. The Courts have taken the view that where a man and a woman live together as husband and wife for a long term, the law will presume that they were legally married unless proved contrary. The first case in which the Supreme Court of India first recognized the live in relationship as a valid marriage was that of Badri Prasad vs. Dy. Director of Consolidation, in which the Court gave legal validity to the a 50 year live in relationship of a couple. The Allahabad High Curt again recognized the concept of live in relationship in the case of Payal Katara vs. Superintendent, Nari Niketan and others, wherein it held that live in relationship is not illegal. The Court said that a man and a woman can live together as per their wish even without getting married. It further said that it may be immoral for the society but is not illegal. Again in the case of Patel and Others., the Supreme Court has held that live in relationship between two adults without marriage cannot be construed as an offence. It further held that there is no law which postulates that live in relationships are illegal. The concept of live in relationship was again recognized in the case of Tulsa v. Durghatiya. In the case of S. Khushboo vs. Kanniammal & Anr., the Supreme Court held that living together is a right to life. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law. In this case, all the charges against Kushboo, the south Indian actress who endorsed pre- marital sex and live in relationship were dropped. The Court held that how can it be illegal if two adults live together, in their words “living together cannot be illegal.” However in one of its judgment Alok Kumar vs. State, the Delhi High Court has held that live in relation is walk in and walk out relationship and no strings are attached to it. This kind of relationship does not create any legal bond between the partners. It further held that in case of live in relationships, the partners cannot complain of infidelity or immorality. Again giving recognition to live in relationships, the Supreme Court in the case of D. Velusamy v. D. Patchaiammal has held that, a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill some basic criteria. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’. It also held that if a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’. The court made it clear that if the man has a live-in arrangement with a woman only for sexual reasons, neither partner can claim benefits of a legal marriage. In order to be eligible for ‘palimony’, a relationship must comply with certain conditions, the apex court said. The following conditions were laid down by the apex Court: The couple must hold themselves out to society as being akin to spouses; They must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; They must have voluntarily cohabited for a significant period of time. Conscious of the fact that the judgment would exclude many women in live-in relationships from the benefit of the Domestic Violence Act, 2005, the apex court said it is not for this court to legislate or amend the law. The parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live-in relationship’. The court cannot change the language of the statute.

RIGHTS OF A FEMALE IN LIVE IN RELATIONSHIP

In June, 2008, it was recommended by the National Commission for Women to the Ministry of Women and Child Development to include live in female partners for the right of maintenance under Section 125 of Criminal Procedure Code, 1973. The view was also supported by the judgment in Abhijit Bhikaseth  Auti v. State Of Maharashtra and Others. In October, 2008, the Maharashtra Government also supported the concept of live in relationships by accepting the proposal made by Malimath Committee and Law Commission of India which suggested that if a woman has been in a live-in relationship for considerably long time, she ought to enjoy the legal status as given to wife. However, recently it was observed that it is divorced wife who is treated as a wife in context of Section 125 of CrPC and if a person has not even been married i.e. the case of live in partners, they cannot be divorced, and hence cannot claim maintenance under Section 125 of CrPC. The partner of a live in relationship was first time accorded protection by the Protection of Women from Domestic Violence Act, 2005, which considers females who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. Section 2(f) of the Act defines domestic relationship which means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Thus, the definition of domestic relationship includes not only the relationship of marriage but also a relationship `in the nature of marriage’. In a case in Delhi, the Delhi High Court awarded Rs. 3000/- per month as maintenance to a maid who was in a live in relationship with her widower employer. In Varsha Kapoor vs UOI & Ors., the Delhi High Court has held that female living in a relationship in the nature of marriage has right to file complaint not only against husband or male partner, but also against his relatives. In the case of Koppisetti Subbharao Subramaniam vs. State of Andhra Pradesh, the defendant used to harass his live in partner for dowry. In this case the Supreme Court held that the nomenclature ‘dowry’ does not have any magical charm written over it. It is just a label given to demand of money in relation to a marital relationship. The Court rejected the contention of the defendant that since he was not married to the complainant, Section 498A did not apply to him. Thus, the Supreme Court took one more step ahead and protected the woman in a live in relationship from harassment for dowry.

STATUS OF CHILDREN OF COUPLES IN LIVE IN RELATIONSHIP

Since there is no specific law that recognizes the status of the couples in live in relationship, hence the law as to the status of children born to couples in live in relationship is also not very clear. The Hindu marriage Act, 1955 gives grants the status of legitimacy to every child irrespective of his birth out of a void, voidable or a legal marriage. But there is no specific law that raises any presumption of legitimacy in favour of children of live in partners. The future of children of live in partners becomes very insecure in case the partners step out of their relationship. There comes the requirement of a strong provision to safeguard the rights of such children. The must be provision to secure the future of the child and also entitling the children to a share in the property of both the parents. Again in the absence of a specific legislation, the Supreme Court of India took the initiative to safeguard the interest of children of live in couples. In the case of Bharata Matha & Ors. vs. R. Vijaya Renganathan & Ors., the Supreme Court of India has held that child born out of a live-in relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn't have any claim as against Hindu ancestral coparcenary property.

CONCLUSION

Live-in relationships in India have still not received the consent of the majority of people. They are still considered a taboo to the Indian society. The majority of the people consider it as an immoral and an improper relationship. At present there is no specific legislation that deals with concept of live in relationship and the rights of the parties and the children of the live in partners. It was a very unambiguous concept until the Supreme Court of India took the initiative and declared that live in relationship though considered immoral but it is not illegal. Through its various decisions the judiciary has tried to accord legality to the concept and protect the rights of the parties and the children of live in couples. But at present there is a need to formulate a law that would clarify the concept.  There should be clear provisions with regard to the time span required to give status to the relationship, registration and rights of parties and children born out of it. The utmost need of the hour is to secure the future of the children born to live in couples. The steps taken by the judiciary are indeed welcoming and pragmatic in approach. Though the live in relations provide the individuals individual freedom but due to the insecurity it carries it with, there needs to be a law to curtail its disadvantages. Matrimonial Lawyers in Chennai

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How the property divided among legal heirs when an HIndu Male/Female dies without writing will? - Hindu Succession Act 1956 -

Introduction

Succession in the Hindus is governed by the Hindu succession Act, 1956, which bases its rule of succession on the basic principle of propinquity, i.e., preference to heirs on the basis of proximity of relationship. Earlier females were excluded, however this rule of exclusion of females has been done away with.   The law of intestate succession is concerned with matters as to who are the Heirs, what are the rules of preference among the various relations, in what manner is the property distributed in case there is more than one heir and so on.   INTESTATE SUCCESSION- A person who dies without making a will is known as intestate. An heir is a person entitled to inherit property after the death of the intestate   The Hindu Succession Act applies to the whole of India except the State of Jammu and Kashmir.   The Act applies to all Hindus, Buddhists, Jainas, Sikhs and to any other person who is not a Muslim Christian, Parsi or Jew.   SPECIAL MARRIAGE ACT If a Hindu marries a non-Hindu under the Special Marriage Act, he shall be severed from the undivided family. However if two persons who are Hindus get married under the Special Marriage Act no such severance takes place. If a Hindu marries a non-Hindu under the Special Marriage Act succession to the property of such person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act. However if two persons who are Hindus get married under the Special Marriage Act the above provision does not apply and they are governed by the Hindu Succession Act.

Joint Family Property

Under the Mitakshara School, the joint family property devolves by survivorship.   When a male Hindu dies after the commencement of this Act having at the time of his death an interest in a Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act.   However if the Mitakshara dies leaving behind a female relative or male relative claiming through Class I, this undivided interest will not devolve by survivorship but by succession as provided under the Act.

General rules of succession-Male

The property of the male Hindu dying intestate shall devolve in the following manner Firstly upon all the heirs, being the relatives specified in Class I; Secondly, if there is no heir of Class I, then upon heirs being the relatives specified in Class II; Thirdly if there is no heir of any of the the classes, then upon the agnates of the deceased; (one person is said to be agnate of another if the two are related by blood or adoption wholly through males) and; Lastly, if there is no agnate, then upon the cognates of the deceased. (One person is said to be a cognate of another if the two are related by blood or adoption but not wholly through male) CLASS Ist HEIRS Son Daughter Widow Mother Son of a predeceased son Daughter of predeceased son Widow of predeceased son Son of a predeceased daughter Daughter of predeceased daughter Son of predeceased so of predeceased son Daughter of predeceased son of a predeceased son Widow of predeceased son of a predeceased son CLASS IInd HEIRS Father (i) Son's daughter's son, (ii) son's daughter's daughter, (iii) brother, (iv) sister (i) Daughter's son's son, (ii) daughter's son's daughter, (iii) daughter' daughter's son, (iv) daughter's daughter's daughter. (i) Brother's son, (ii) sister's son, (iii) brother's daughter, (iv) sister's daughter. Father's father; father's mother. Father's widow; brother's widow. Father's brother; father's sister. Mother's father; mother's mother Mother's brother; mother's sister. Class I heirs take simultaneously to the exclusion of all other heirs Heirs in the first entry of Class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.

General Rules of Succession-Female

The property of a female Hindu dying intestate shall devolve: firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; secondly upon the heirs of the husband; thirdly, upon the mother and father; fourthly, upon the heirs of the father; and; lastly, upon the heirs of the mother However, if any property is inherited by a female Hindu from her father or Mother it shall devolve in the absence of any son of daughter of the deceased (including the children of any predeceased son or daughter) not upon the heirs referred to above but upon the heirs of the father; and any property inherited by a female Hindu from her Husband or from her father in law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon their referred to above, but upon the heirs of the husband.

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The Maintenance And Welfare Of Parents And Senior Citizens

Introduction

Maintenance of Parents and Senior citizen is the responsibility of very person. In India the uncared senior citizens including parents who are unable to maintain themselves from their own resources or are abandoned by their children, can get the relief under an Act known as The Maintenance and Welfare of Parents and Senior Citizens Act. Under this Act, children and property heirs must take care of the maintenance of their parents/senior citizens. The purpose of enacting this Act was to fulfill the gaps in Section 125 of the Code of Criminal Procedure, 1973. The Code of Criminal Procedure, 1973 has limited provision for maintenance of parents only and is silent on welfare measures. Whereas the Maintenance and Welfare of Parents and Senior citizen Act 2007, has provisions for maintenance and also look after the welfare of parents and senior citizens. It is a comprehensive Act. It has a broader scope and is not limited to the sphere of parent-child relationship only. The Act holds the State responsible for the implementation of welfare measures for senior citizen. By bringing out the Maintenance and Welfare of parents and citizens Act, the Government has taken a small step towards bringing a smile to the faces of the elders of our society. As a nation, it is every citizens duty to ensure that Senior Citizens live a happy, healthy and secure life. We should always keep in mind that who took care of us in their youth and helped us to grow, we owe them a better tomorrow. The act extends to the whole of India except the Sate of Jammu and Kashmir and it applies also to citizens of India outside India.

PROVISIONS OF THE ACT:

Ø A senior citizen includes parents who are unable to maintain themselves through their own earnings or out of their own property, may apply for maintenance from their adult children or any legal heir (who is in possession of or is likely to inherit their property) of the childless senior citizen. This maintenance includes the provision of proper food, shelter, clothing and medical treatment. Ø Parents include biological, adoptive and step mothers and fathers, whether senior citizens or not. JURISDICTION FOR FILING APPLICATION FOR MAINTENANCE The proceedings under the provision of the Act may be taken against any children or relative in any district:- a. where the senior citizen or parent resides or last resided; b. where children or relative resides.

DEPOSIT OF THE MAINTENANCE AMOUNT

o When a maintenance order is made under this Act, the children or relative who is required to pay must deposit the entire amount in such manner as the Tribunal, within thirty days of the date of announcing the order by the Tribunal. o Where any Tribunal makes an order for maintenance under this Act, such Tribunal may also direct that in addition to the amount of maintenance, simple interest to be paid at such rate and from such date not earlier than the date of making the application, which can not be less than five per cent, and not more than eighteen per cent. APPEALS Ø Any senior citizen or a parent, who gets aggrieved by the order of the Tribunal can prefer an appeal at the Appellate Tribunal within sixty days from the date of the order. Ø The Appellate Tribunal after examining the appeal and the records called for may either allow or reject the appeal. Ø The Appellate Tribunal adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal is the final. No appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative.

REVOCATION OF WILL

As per the provision of the Act, a senior citizen can seek to revoke any property, which has been transferred in favour of children/relative on the condition that such children/relative would provide maintenance to him but are not providing the same. The tribunals are empowered to declare such transfers as void on the applications of such parent. OFFENCES AND PROCEDURE FOR TRIAL Ø Exposure and abandonment of senior citizen : Erring persons are punishable with imprisonment up to three months or a fine of up to rupees five thousand or with both. Ø Cognizance of offences : (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974) every offence under this Act shall be cognizable and bailable. (2) An offence under this Act shall be tried summarily by a Magistrate. PROVISIONS FOR MEDICAL CARE OF SENIOR CITIZEN The Act provides that the State Government shall ensure : - · the Government hospitals or hospitals funded fully or partially by the Government shall provide beds for all senior citizens as far as possible; · separate queues be arranged for senior citizens; · facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens; · research activities for chronic elderly diseases and ageing is expanded; · there are earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care. Ongoing transition in the families today as a result of changes in the cultural contours in the society has posed several challenges to the elderly care in the society. There is crisis in the institution of family, which carries special significance to the care of elderly people. The State Government is required to set up one or more tribunals in every sub-division. It sholud also set up Appellate Tribunals in every district to hear the appeals of Senior Citizens against the decision of the Tribunals. State Governments should set up at least one Old Age Home for every 150 beneficiaries in a district. These homes are to provide Senior Citizens with minimum facilities such as food, clothing and recreational activities. All Government hospitals or those funded by the Government must provide beds for Senior Citizens as far as possible. Also, special queues to access medical facilities should be arranged for them. source:helplinelaw.com

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Gifts Under Hindu Law

Gifts under Hindu Law

Gift is a relinquishment without consideration of one's own right in property and the creation of the right of another. A gift is completed only on the other's acceptance of the gift.

 

WHAT PROPERTY MAY BE GIFTED

1. A Hindu may dispose of by gift his separate or self acquired property, subject in certain cases to the claims for maintenance of those he is legally bound to maintain.
2. A coparcerner, may dispose of his coparcernary interest by gift subject to the claims of those who are entitled to be maintained by him.
3. A father may by gift dispose of the whole of his property, whether ancestral or self acquired, subject the claims of those he is entitled to be maintained by him.
4. A female may dispose of her stridhana by gift or will, subject in certain cases to the consent of her husband.
5. A widow may in certain cases by gift dispose of a small portion of the property inherited by her from her husband, but she cannot do so by will.
6. The owner of an impartible estate may dispose of the estate by gift or will, unless there is a special custom prohibiting alienation or the tenure is of such a nature that it cannot be alienated.

A gift under Hindu law need not be in writing. However, a gift under the law is not valid unless it is accompanied by delivery of possession of the subject of the gift from the donor to the donee. However where physical possession cannot be delivered, it is enough to validate a gift, if the donor has done all that he could do to complete the gift, so as to entitle the donee to obtain possession.

 

GIFTS BY HINDUS WHERE TRANSFER OF PROPERT ACT APPLIES.

 

A gift under the above act can only be effected in the following manner.

1. For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
2. For the purpose of making a gift of a movable property, the transfer may be effected by a registered document signed by the donor or by delivery.

GIFTS TO UNBORN PERSONS

 

Under pure Hindu law, a gift cannot be made in favour of a person who was not in existence at the date of the gift. This rule has been altered by 3 acts namely
The Hindu Transfers and Bequests Act 1914, Hindu Disposition of Property act 1916, and the Hindu Transfers and Bequests (City of Madras)Act 1921

 

RESERVATION OF LIFE INTEREST. 

A gift of property is not invalid because the donor reserves the usufruct of the property to himself for life.

 

CONDITIONS RESTRAINING ALIENATION OR PARTITION 

Where property is given subject to a condition absolutely restraining the donee from alienating it, or it is given to two or more persons subject to a condition restraining them from restraining it, the condition is void, but the gift itself remains good.

 

REVOCATION OF GIFT 

A gift once completed is binding on the donor, and it cannot be revoked by him unless it is obtained by fraud or undue influence.

 

GIFT IN FRAUD OF CREDITORS

 

A gift made with the intent to defeat or defraud creditors is voidable at the option of the creditors. 

Please consult with Property Lawyers in Chennai or attorneys in your jurisdiction to consultant more on the transfer of property through Gift. 

source:helplinelaw.com

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Right Of Hindu Women In Undivided Property

Introduction:

Every citizen of India is guaranteed equality before law and equal protection of the laws irrespective of his gender, caste, creed, and race. The Constitution of India also contains provisions for empowerment of women. The concept of equal social status to women also includes their right to hold and inherit property like the male members of the family. Despite the equality guaranteed by the law of the land, women in India had suffered a lot of inequalities. Prior to the enactment of the Hindu Women’s Right to Properties Act 1937, women were not entitled to a share in the Joint Family Property and succession was governed by survivor ship. As per the rule of survivor ship, on the death of a member of joint and undivided family, his share in the joint family property would pass on to the surviving coparceners, which was inclusive of only the male members of the family.

What is Coparcenary:

The Hindu Succession Act, 1956 gave women equal inheritance rights with men. But the daughters were not given a birth right in the ancestral property under the Mitakshara coparcenary. Coparcenary refers to equal inheritance which was restricted only to male members of the Hindu Undivided Family. It is a narrower body of persons within a joint family. Coparceners jointly inherit property and have unity of possession. Coparcenary is limited to three generations next to the holder. If a man has sons, grandsons and great-grandsons living, all of these constitute a single coparcenary with him. The share of coparceners in the joint coparcenary property was fluctuating which diminished and enlarged with the birth and death of a coparcener in the family. No female was a member of the coparcenary in Mitakshara law before the Hindu Succession (Amendment) Act, 2005. If the family owned a dwelling house, then the daughter's right was confined only to the right of residence and not possession or ownership. The daughter has been made a coparcener by birth in the joint property after coming into force of the Hindu Succession (Amendment) Act, 2005.

Right of Women Under Hindu Succession Act, 1956:

The Hindu Succession Act, 1956 dealt with law relating to intestate succession among Hindus. The properties of a Hindu male dying intestate devolves, in the first instance, equally on his sons, daughters, widow and mother and include the specified heirs of predeceased sons or daughters. Section 6 of the Act deals with devolution of interest in the coparcenary property. According to the Section 6 of the Act prior to the passing of the Amendment Act of 2005, the interest of a coparcener who died intestate shall devolve on others coparceners by rule of survivorship. According to the unamended Section 6, if the deceased died leaving behind a surviving female relative specified in Class I of Schedule I, or a male relative specified in that Class who claims through such female relative, or a male claiming through such female, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or interstate succession under this Act and not by survivorship. Thus, in Mitakshara coparcenary females could not inherit ancestral property. Thus, the provision contained in the unamended Section 6 of the Act, by excluding the daughters from participating in coparcenary ownership not only contributed to an inequity against females but had also led to oppression and negation of their right to equality.

The State Amendments:

The Hindu Succession Act containing the discriminatory provision was followed for about 49 years. But there were five states in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka who took the initiative to treat women equally both in the economic and the social spheres. States of Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka had inserted provisions wherein the daughter has been made a coparcener by birth in the joint family property in her own right in the same manner as the son. The state of Kerala, in addition to making the daughter as a coparcener has also abolished the right to claim any interest in any property of an ancestor during his or her lifetime founded on the mere fact that he or she was born in the family. It has abolished the Joint Hindu family system.

The Hindu Succession (Amendment) Act, 2005:

The Hindu Succession (Amendment) Act, 2005 was passed to remove gender discriminatory provisions in the Hindu Succession Act, 1956 and to give equal rights to daughters in Hindu Mitakshara coparcenary property as the sons have. The Act aimed at making two major amendments in the Hindu Succession Act, 1956. Firstly it amended the provision which excluded the right of the daughters form the coparcenary property and secondly it omitted Section 23 of Act which dis entitled a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein. The main provisions of the Hindu Succession (Amendment) Act, 2005 are: In a Hindu Joint Family governed by Mitakshara law, the daughter by birth shall become a coparcener in her own right in the same manner as a son. She would have the same rights in the coparcenary property as that of a son. She shall be subject to same liabilities in respect of the said coparcenary property as that of a son. Any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. Any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 shall not be affected or invalidated by reason of the amendment of Section 6 of the Act. Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and could be disposed of by her by testamentary disposition. Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place. In case of notional partition: The daughter is allotted the same share as is allotted to a son; The share of the pre-deceased son or a pre-deceased daughter shall be allotted to   the surviving child of such pre-deceased son or of such pre-deceased daughter; The share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, shall be allotted to the child of such pre-deceased child of the pre-deceased so or a pre-deceased daughter, as the case may be. The interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. After the commencement of the Amendment Act, there shall be no obligation on the son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law. Nothing contained in amended Section shall apply to a partition, which has been   effected before the 20th day of December 2004.

Effect of the Amendment Act on the Position of the Women:

The significant change that was brought by the Amendment Act was to make daughters coparceners in joint family property. After the amendment, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and she would have the same rights in the coparcenary property as she would have had if she had been a son. With the rights that she acquire in the joint family property she also is subjected to the same liabilities in respect of the said coparcenary property as that of a son and any reference to a Hindu Mithakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. According to this amendment if the daughter dies intestate; her interest in coparcenary would devolve by succession in accordance with section 15 of the Hindu Succession Act, 1956. If the daughter is left alone by deceased male coparcener, she shall inherit his entire property of which she would become absolute owner and after her death, if she dies intestate shall devolve upon her heirs as per section 15. The daughter now has the right to dispose of her interest in coparcenary by making a will and if she is a lone heir she shall become absolute owner of the property and shall also have a right to alienate it during her life time. This amendment also created a right to have a share in the joint property during the partition favour of children of the daughter and her pre-deceased daughter, in case of their death, that is to say a son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a predeceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son, are also now included in Schedule to Hindu Succession Act, 1956 as Class I heirs. The said heirs, not being coparceners, would not have right to demand partition. Any disposition, alienation, partition or testamentary disposition of property made before 20th December, 2004 shall not be invalidated by reason of the amendment of Section 6. However, the right of the mother or deceased’s widow in the joint family property has remained unchanged. They would be entitled to an equal share with other Class I heirs only from the separate share of the father and her husband respectively computed at the time of the notional partition. With the amendment Section 6, the actual share of the mother will go down with daughters also becoming coparceners in the joint family property. According to the amended Section 6 of the Hindu Succession (Amendment) Act, 2005 if a Hindu dies after the commencement of the Amendment Act, his interest in the property of the joint Hindu family governed by the Mithakshara Law shall devolve by testamentary or intestate succession and not by survivorship and the coparcenary property shall be deemed to have been divided as if a partition had taken place.

Conclusion:

The basic object of the amendment to the Section 6 of the Hindu Succession Act was to achieve equal inheritance for all. Daughter of a coparcener in a Hindu joint family governed by Mitakshara Law now is coparcener by birth in her own right in the same manner as a son; she has right of claim by survivorship and has same liabilities and disabilities as a son; now coparcenary property to be divided and allotted in equal share. But these laws cannot be successful unless and until there is social awareness amongst the women about their rights. Women themselves relinquish their rights and tend to suffer deprivation. The change which took about 49 years to bring daughters at par with the sons with respect to their right in their ancestral property cannot be lost sight of just because of ignorance of people. The judiciary should also make efforts to implement the law so as to achieve the objective behind the amendment of the law. Above all it’s the woman herself who has to be aware of and assert her rights. To get the complete property legal opinion of a lawyer in Chennai or your Jurisdiction, please contact the experienced property lawyers for partition of property.

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Enforcement Of A Will

ENFORCEMENT OF A WILL

Wills and the questions related thereto have always been intriguing for most of us as there is not much clarity among the general people regarding making of a Will, its execution, steps involved therein and the role of the Courts.
Will is in general the legal declaration of the intention of the testator with respect to his properties which he so desires to carry into effect after his death. This definition of the Will is under the Indian Succession Act. Since it is a document which takes effect only after the demise of the testator, it can be revoked and redrafted any number of time during his lifetime, the last Will left behind by the testator is to be considered as his legal declaration. It should have revoked all other Wills and codicils made before that date of the last Will.

The Will so made, may not necessarily be registered as is the general perception, even a Will made on a plain paper witnessed by witnesses is a valid Will till it is established otherwise.

The Testator may appoint an Executor to give effect to his Will. In cases where no Executor has been appointed by the Testator, or the Executor so appointed is legally incapable or refuses or dies before the Testator or before he has proved the Will, or before he has administered all the Estate of the deceased,  the Court may appoint an administrator by granting Letters of Administration which may be granted to the universal or residuary Legatee in respect of the deceased’s estate.

Under Section 213 of the Indian Succession Act, states that no right as executor or legatee can be established in any Court of Justice unless a Court of competent jurisdiction, in India has granted probate of the Will under which the right is claimed or has granted Letters of Administration with the Will or with a copy of an authenticated copy of the Will annexed.
Probate can be granted only to the executor appointed by the Will as per Section 222 of the Indian Succession Act. A probate establishes the title of the beneficiary in the property received by him under the Will. Thus an executor or legatee cannot establish his right under the Will in a Court of law without obtaining the Probate or Letters of Administration. This however applies to people covered under Section 57 (a) and (b).

In order to obtain probate one has to make an application stating details about the deceased before the Court of competent jurisdiction with a copy of the Will. The Court shall summon the kith, kin and heirs of the deceased by way of notices and seek their say in the matter of the Will. If there are objections to the genuineness of the Will, such heirs can file their objections which shall be tried before the Court and only upon being satisfied that it is a valid Will and that the same was made by the Testator while he was in a sound state of mind, shall the Court grant probate or Letters of Administration as the case may be. Any other objection with regard to the rights of the Testator to dispose the properties under the Will cannot be challenged in an application for probate or letters of administration. The Court shall proceed on the assumption that the title vested in the Testator. 

Source: helplinelaw.com

To get the complete legal opinion of a lawyer in Chennai or your Jurisdiction, please contact the experienced property lawyers for drafting and registration of will

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Muslim Women Right To Maintenance Us 125 of Criminal Procedure Code

Introduction

The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum and others has held that if the divorced woman is able to maintain herself, the husband's liability ceases with the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to maintenance under section 125 of the Code of Criminal Procedure. This led to controversy as to the obligations of the Muslim husband to pay maintenance to the divorced wife. The Muslim Women (Protection of Rights on Divorce) Act was passed to dilute the judgement given in the decision of Shahbano case.

Option to be Governed by Code of Criminal Procedure

If a divorced woman and her former husband declare, by affidavit or any other declaration in writing, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. COMPARATIVE CHART-BROAD OUTLINE   Muslim Women(Protection of Rights on Divorce) Act 1986 Section 125 Code of Criminal Procedure Jurisdiction Application is filed in the area where divorced woman resides Application where the husband is, or resides or where he last resided with his wife Relief available Reasonable and fair provision and maintenance, or the amount of mahr or dower paid, all properties given at the time of marriage or after marriage. If unable to maintain herself, after Iddat period relatives ordered to pay maintenance and if no relatives exist then Warf board pays. Allowed a monthly allowance, not exceeding Rs.500. No provision for maintenance by children, relatives or Wakf Board after Iddat period. Punishment on failure to pay Imprisonment which may extend to one year. Imprisonment which may extend to one month. Applies to Only to divorced woman To every married or divorced woman. Alteration /allowance No such Provision. On change of circumstances Alteration maybe made. Maintenance after Iddat Woman to be maintained by her children or parents or relatives or the Warf board. No such provision.   A 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- three menstrual courses after the date of divorce, if she is subject to menstruation; and three lunar months after her divorce, if she is not subject to menstruation; and 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.

PROVISIONS OF THE ACT:

 A senior citizen includes parents who are unable to maintain themselves through their own earnings or out of their own property, may apply for maintenance from their adult children or any legal heir (who is in possession of or is likely to inherit their property) of the childless senior citizen. This maintenance includes the provision of proper food, shelter, clothing and medical treatment.  Parents include biological, adoptive and step mothers and fathers, whether senior citizens or not.

Rights

A Muslim woman at the time of divorce is entitled to the following A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; 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; 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 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. 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 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.

JURISDICTION FOR FILING APPLICATION FOR MAINTENANCE

The proceedings under the provision of the Act may be taken against any children or relative in any district:- a.      where the senior citizen or parent resides or last resided; b.      where children or relative resides. APPLICATION FOR MAINTENANCE Ø       Application for maintenance may be made by Senior Citizens themselves or they may authorize a person or voluntary organization to do so. The Tribunal may also take action suo moto. Ø       Tribunals on receiving the application may hold an enquiry or order the children/ relatives to pay an interim monthly allowance for the maintenance of their Parents or Senior Citizen. Ø       If the Tribunal is satisfied that children or relatives have neglected or refused to take care of their parents or Senior Citizen, it shall order them to provide a monthly maintenance amount, up to a maximum of Rs.10,000 per month. Ø       A maintenance order made under this Act have the same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) and is executed in the manner prescribed for the execution of such order by that Code. Ø       If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month’s allowance for the maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier. Ø       No legal practitioner is required or permitted for this process

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 authorised 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- her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children;or the amount equal to the sum of mahr or dower has not been paid; or 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

DEPOSIT OF THE MAINTENANCE AMOUNT

o       When a maintenance order is made under this Act, the children or relative who is required to pay must deposit the entire amount in such manner as the Tribunal, within thirty days of the date of announcing the order by the Tribunal. o       Where any Tribunal makes an order for maintenance under this Act, such Tribunal may also direct that in addition to the amount of maintenance, simple interest to be paid at such rate and from such date not earlier than the date of making the application, which can not be less than five per cent, and not more than eighteen per cent. APPEALS Ø      Any senior citizen or a parent, who gets aggrieved by the order of the Tribunal can prefer an appeal at the Appellate Tribunal within sixty days from the date of the order. Ø      The Appellate Tribunal after examining the appeal and the records called for may either allow or reject the appeal. Ø      The Appellate Tribunal adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal is the final. No appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative.

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 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 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.

REVOCATION OF WILL

As per the provision of the Act, a senior citizen can seek to revoke any property, which has been transferred in favour of children/relative on the condition that such children/relative would provide maintenance to him but are not providing the same. The tribunals are empowered to declare such transfers as void on the applications of such parent. OFFENCES AND PROCEDURE FOR TRIAL Ø      Exposure and abandonment of senior citizen : Erring persons are punishable with imprisonment up to three months or a fine of up to rupees five thousand or with both. Ø      Cognizance of offences : (1) Notwithstanding anything contained in the Code of Criminal Procedure,      1973, (2 of 1974) every offence under this Act shall be cognizable and          bailable. (2) An offence under this Act shall be tried summarily by a Magistrate. PROVISIONS FOR MEDICAL CARE OF SENIOR CITIZEN The Act provides that the State Government shall ensure : - ·        the Government hospitals or hospitals funded fully or partially by the Government shall provide beds for all senior citizens as far as possible; ·        separate queues be arranged for senior citizens; ·        facility for treatment of chronic, terminal and degenerative diseases is expanded for senior citizens; ·        research activities for chronic elderly diseases and ageing is expanded; ·        there are earmarked facilities for geriatric patients in every district hospital duly headed by a medical officer with experience in geriatric care. Ongoing transition in the families today as a result of changes in the cultural contours in the society has posed several challenges to the elderly care in the society. There is crisis in the institution of family, which carries special significance to the care of elderly people. The State Government is required to set up one or more tribunals in every sub-division. It sholud also set up Appellate Tribunals in every district to hear the appeals of Senior Citizens against the decision of the Tribunals. State Governments should set up at least one Old Age Home for every 150 beneficiaries in a district. These homes are to provide Senior Citizens with minimum facilities such as food, clothing and recreational activities. All Government hospitals or those funded by the Government must provide beds for Senior Citizens as far as possible. Also, special queues to access medical facilities should be arranged for them.

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 THERE ARE CHILDREN Where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her: 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. To get the complete legal opinion of a Family Lawyer in Chennai or your Jurisdiction, please contact the experienced Family lawyers to file the maintenance petition before the Family Court.

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