Introduction
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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:
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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
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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
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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 |
The Maintenance And Welfare Of Parents And Senior Citizens
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
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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.
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A coparcerner, may dispose of his coparcernary interest by gift subject to the claims of those who are entitled to be maintained by him.
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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.
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A female may dispose of her stridhana by gift or will, subject in certain cases to the consent of her husband.
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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.
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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.
- 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.
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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
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
Right Of Hindu Women In Undivided Property
Introduction:
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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.
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What is Coparcenary:
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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:
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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.
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The State Amendments:
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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:
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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:
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Effect of the Amendment Act on the Position of the Women:
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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:
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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
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
Muslim Women Right To Maintenance Us 125 of Criminal Procedure Code
Introduction
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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.
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Option to be Governed by Code of Criminal Procedure
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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
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-
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PROVISIONS OF THE ACT:
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 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. |
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Rights
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A Muslim woman at the time of divorce is entitled to the following
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JURISDICTION FOR FILING APPLICATION FOR MAINTENANCE
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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
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Application
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Where
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-
He may make an order, within one month of the date of the filing of the application, directing her former husband to:
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DEPOSIT OF THE MAINTENANCE AMOUNT
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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.
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Failure to pay
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If any person against whom an order has been made fails without sufficient cause to comply with the order, the Magistrate may
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REVOCATION OF WILL
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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.
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Failure to Maintain Herself After Iddat Period
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Where the Magistrate is satisfied that
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 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. |
Marriage Laws Amendment Bill An Overview
INTRODUCTION:
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The Hindu Marriage Act, 1955 provides various grounds for dissolution
of marriage by decree of Court. Cruelty, desertion, adultery,
unsoundness of mind, conversion to other religion, renunciation of
world, virulent and incurable form of leprosy, venereal disease in a
communicable form and not heard of being alive for a period of seven
years or more are the grounds for divorce provided under Section 13 of
the Act. Similar grounds for divorce have been provided under Section 27
of the Special Marriage Act, 1954. Both the acts also contain a
provision for grant of divorce on the ground of mutual consent. The
irretrievable breakdown of marriage is not a ground for divorce under
both the Acts.
Pursuant to the recommendations of the 71st Report f the Law Commission of India and the recommendations of the Supreme Court and demand from various sectors, the bill for amendment of the marriage laws was drafted. The Union Cabinet on March 23, 2012 approved various proposals seeking amendments in the Hindu Marriage Act of 1955 and Special Marriage Act of 1954 aimed at providing ‘irretrievable breakdown of marriage’ as a new ground for parting ways. |
PROPOSED CHANGES:
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Conclusion:
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The
irretrievable breakdown of marriage is not a ground of divorce either
under the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954.
The proposed amendment to the marriage laws aims at accelerating the
process of divorce, when there is indeed an irretrievable breakdown of
marriage. The parties who are going through a broken marriage and cannot
live together have to undergo a lot of mental agony. The present
procedure also aggravates the suffering of the parties Thus, to save the
parties of irretrievable broken marriage from mental agony, it has been
proposed to waive off the cooling period of six months granted to
parties after the presentation of the bill. The cooling off period will
be decided by the Courts on the case to case basis. The proposed changes
in the bill expressly lay emphasis on the welfare of the children while
granting divorce to the parties.
Though the provisions of making irretrievable breakdown of marriage as a ground of divorce proposed to be introduced by the Amendment Bill have been appreciated by the people especially the couples whose marriage has broken down beyond repair, there is a likelihood of the misuse of the provisions. To mitigate the hardship that could have been caused to women the bill also proposes to give women a right in the property of the husband acquired by him during the marriage, though the quantum of the share would be decided upon the case to case basis. The Marriage Laws Amendment Bill, 2010 provides safeguards to the parties who file petition for grant of divorce keeping in view the interests of the children and also providing financial support to the women by giving her right in the property of the husband. |
Power of Attorney Facts
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What is a Power of Attorney?
A power of attorney is an instrument empowering a specified person to act for and in the name of the person executing it.
Power of Attorney as an Agency:
A power of attorney is a delegation of authority in writing by which one person is empowered to do an act in the name of the other. The person who acts on behalf of another person (the principal) by his authority, express or implied, is called an agent and the relation between him and his principal is called agency.
Termination of a Power of Attorney:
A power of attorney can be terminated or cancelled by the principal by revoking his authority or by the power of attorney holder renouncing his authority. An agency (the authorised person to act as a POA) can be terminated by the principal (the executor) by revoking his authority or by the agent renouncing his authority, unless such revocation is prohibited under S. 202 of the Contract Act.
S. 201 of the Contract Act also states that an agency terminates, inter alia, by death of principal or agent.
Legal complications arising out of Power of Attorney.
Whether a power of attorney can be irrevocable in nature, and/or
whether an irrevocable power of attorney granted would terminate on death of a donor ?
When does a power of attorney become irrevocable?
(a) Legal provisions : (1) The Power of Attorney Act does not state when a power of attorney is irrevocable. However, in various commercial transactions, a donor gives an irrevocable power of attorney, on contractual basis, to secure the interest of the donee of the power.
(2) Under S. 4 of the (English) Powers of Attorney Act, 1971 a power of attorney is irrevocable if it is expressed to be so and is given to secure : (i) a proprietary interest of the donee of the power; or (ii) the performance of an obligation owed to the donee. Then, so long as the donee has the interest or the obligation remaining undischarged, the power cannot be revoked by the donor without the consent of the donee, or by death, incapacity, insolvency, winding up or dissolution of the donor.
(3) Illustration : In a typical Mumbai scenario, where redevelopment of property is common, A, being the owner of a piece of land over which he resides, gives B, a developer, an irrevocable power of attorney to develop such land and ultimately transfer the same in favour of a Society or Condominium or such Association of Persons. Such a power of attorney is given for a valuable consideration. In the event A dies whilst the property is in the process of being redeveloped, such an irrevocable power of attorney granted by A to B cannot be revoked or terminated and B is entitled to complete such redevelopment.
(4) Where a power of attorney is given for a valuable consideration and expressed to be irrevocable, or is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable.
(b) Authority coupled with interest : (1) S. 202 of the Contract Act lays down the rule that ‘authority coupled with interest is irrevocable’. (2) S. 202 of the Contract Act states that "where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."
Illustrations :
(a) A gives authority to B to sell A’s land, and to pay himself out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(4) In the aforesaid illustrations, authority is given for the purpose of being a security for a debt, therefore it is irrevocable.
(5) Where the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. (6) To make the authority irrevocable, the agent must have an interest in the property which forms the subject matter of the agency. Where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of any express contract, be terminated to the prejudice of such interest.
(7) The mere fact that a power is declared in the instrument granting it to be irrevocable, does not make it irrevocable.
(8) The exceptional case dealt with here is that in which the authority or power is coupled with an interest in the thing on which power is to be exercised.
(9) Instead of the words ‘authority coupled with an interest’ used in the English and American systems of law, the Section contains the words ‘the agent has himself an interest in the subject mater of the agency.’ Under the English law, what is meant by an authority coupled with an interest is this — that where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable. [Clerk v. Laurie, 2 H & N 199]. (10) In Prahlad v. T. F. Kumari, AIR 1956 Pat 233 where, under a document drawn in the form of a power of attorney, a lady agreed that the debts raised by X for her should be realised out of the collections of a particular estate and the effect of the document though not described as one of agency was to create an agency in favour of X, it was held that the agency was one coupled with an interest and therefore irrevocable and in substance amounted to an allocation of the funds to be appropriated towards the repayment of the debts.
(11) Similarly, when an agent is employed to enter into any contract, or do any other lawful act involving personal liability, or is expressly or impliedly authorised to discharge such liability on behalf of the principal, the authority becomes irrevocable as soon as the liability is incurred by the agent [Read v. Anderson, (1884) 13 QBD 779], and where an agent is authorised to pay money on behalf of his principal to a third person, the authority becomes irrevocable as soon as the agent enters into a contract, or otherwise becomes bound to pay or hold such money to or to the use of such person [Robertson v. Fauntleroy, (1823) 8 Moore 10].
(12) So, where a principal and agent agree for valuable consideration or under a seal that the agent is to have authority, for example, to collect rents in order to secure a loan [Spooner v. Sandilands, (1848) I Y & C. Ch. 390], or to sell certain land and to discharge a debt owed to him by the principal out of the purchase money [Gaussen v. Morton, (1830) IO B & C 731], the principal thereby confers an interest on the agent, and the agency cannot be revoked unilaterally.
(13) As decided in Pestanji Mancharji Wadia v. Matchett, (1870) 7 BHC AC 10, where an agent is authorised to recover a sum of money due from a third party to the principal, and to pay himself out of the amount so recovered the debts due to him from the principal, the agent has an interest in the subject matter of the agency, and the authority cannot be revoked.
(14) Illustration : A owes B a certain sum of money. A authorises B to recover from C, the rent which C owes A, and to pay himself (B) out of the rent recovered, the debts due to him from A. Such an authority cannot be revoked by A, because such authority confers an interest on B.
(15) So also a vendor promoter of a company, who is to be paid a commission out of the money raised by the issue of shares, has a clear and direct interest in raising the capital. An underwriter who promises to buy a certain number of shares from the promoter and authorises him to make the necessary application, cannot revoke the authority, this being an authority coupled with interest. [Carmichael’s case (1896) 2 Ch. 643]
(16) "If a borrower, in consideration of a loan, authorises the lender to receive the rents of Blackacres by way of security, the authority remains irrevocable until repayment of the loan in full has been effected. This doctrine applies only where the authority is created in order to protect the interest of the agent; it does not extend to a case where the authority is given for some other reason and the interest of the agent arises later." [Cheshire on the Law of Contracts, 6th Ed.]
(17) Illustration : A (lender) has given B (borrower) a certain loan. As a security for repayment of the loan, B authorises A to receive all the rent which B is entitled to — arising out of a certain property owned by B — until such loan is repayed by B to A. Such an authority created to protect the interest of A, is irrevocable.
(18) Further, the principle applies only to cases where authority is given for the purpose of being a security or a part of the security, and not to cases where the interest of the donee arises afterwards and incidentally. In such cases there is no authority coupled with an interest; but an independent authority, and an interest subsequently arising [Garapati Venkanna v. Mallupudi Atchuta-ramanna, AIR 1938 Mad. 542].
(19) However, it is pertinent to note that mere right to remuneration or commission does not constitute an agency coupled with interest.
(20) For example, the agents for the sale of cloth who are entitled to keep for themselves any excess over rates that they might secure from purchases have no interest in the property to be sold or in the sale proceeds thereof, so as to attract S. 202 of the Contract Act [Dalchand v. Seth Hazarimal, AIR 1932 Nag. 34].
(21) In another Bombay case, it was held that the mere fact that the salary of an agent collecting rents was to be paid out of the collections, did not create an interest sufficient to make the authority irrevocable [Vishnucharya v. Ramachandra, ILR 3 Bom. 253].
(22) For instance, as held in Lakshmichand Ramchand v. Chotooram Motiram, (1900) 24 Bom. 403, the interest which the agent has in effecting a sale and the prospect of remuneration to arise therefrom, do not constitute such an interest as would prevent the termination of the agency.
(23) If any such interest were to be created for the benefit of the agent, it should be contem-poraneously provided for in the instrument of agency itself and should not only be express but also be explicit. It should not give any room for doubt, nor could it be a matter of interpretation. An agency to be irrevocable should therefore create in the agent an interest in the subject matter contemporaneously with the document wherein such agency is created and it cannot be left to chance or guess or inference.
(24) In Corporation Bank v. Lalitha H Holla, AIR 1994 Kant. 133, held : the fact whether the power of attorney is given for securing the interest of the agent, can be ascertained from the facts de hors the express terms of the contract.
(25) In Kondayya Chetti v. Narasimhulu Chetti, (1986) 20 Mad. 97, held : The interest of the agent in the subject matter of the agency may be inferred from the language of the document creating the agency, and from the course of the dealings between the parties, it need not be expressly given. It is the existence of the interest and not the mode in which it is given, that is of importance.
(26) In Mariyakutty v. Chalandian Bank Ltd., AIR 1957 TC 174, the hypothecation deed showed that the shares and the right to the dividends on the same were all charged for the amount borrowed. It was further stipulated that as long as the debt was in existence, the pledgee was authorised to receive directly from the bank any dividend declared and appropriate the same towards interest. It was held that these words clearly created an agency in favour of the pledgee in view of the hypothecation deed which clearly authorised the pledgee to represent the owner of shares with regard to receipt of dividends from the bank, and that the agency created was one contemplated in S. 202, and could not be determined at the instance of the principal alone. IV. Whether an irrevocable power of attorney would terminate on death of donor ? (a) Indian Law : (1) The Supreme Court of India, in the case of Seth Loon Karan Sethiya v. Ivan E. John, AIR 1969 SC 73, held : where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked. (b) English Law : (1) According to S. 4(1) of the (English) Powers of Attorney Act, 1971 a power of attorney is irrevocable if it is expressed to be so and is given to secure : (i) a proprietary interest of the donee of the power; or (ii) the performance of an obligation owed to the donee. Then, so long as the donee has the interest or the obligation remaining undischarged, the power cannot be revoked by the donor without the consent of the donee, or by death, incapacity, insolvency, winding up or dissolution of the donor. (2) According to S. 126 of the (English) Law of Property Act, 1925 (15 & 16 Geo. V, c.20) Powers of attorney, which are given for a valuable consideration and which are stated in the instrument creating them to be irrevocable, cannot be revoked at any time either by any thing done by the donor of the power without the concurrence of the donee, or by the death, disability, or bankruptcy of the donor of the power. Any purported revocation will be ineffective both as regards the donee and a purchaser for value. (3) Adopting the classical statement of the rule given by Wilde, C.J. in Smart v. Sandars, (1848) 5 CB 895, 917, Bowstead on the Law of Agency, 14th Edition, page 423, states as follows : "(i) Where the authority of an agent is given by deed or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. But it is not irrevocable merely because the agent has an interest in the exercise of it or has a special property in, or lien for advances upon, the subject matter of it, the authority not being given expressly for the purpose of securing such interest or advances : (ii) Where a power of attorney whenever created is expressed to be irrevocable and is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable; (iii) Authority expressed by this article to be irrevocable is not determined by the death, insanity or bankruptcy of the principal, nor . . . where the principal is an incorporated company, by its winding or dissolution, and cannot be revoked by the principal without the consent of the agent." V. Conclusion : What emerges from the above is that an irrevocable power of attorney creating an agency, wherein the agent (the donee) has an interest in the property and which forms the subject matter of such agency created for valuable consideration, the agency cannot be terminated to the prejudice of such interest, unless there is an express contract to the contrary. It can, therefore, be inferred that an irrevocable power of attorney granted in relation to a subject matter in which the donee has an interest, cannot be revoked by the donor, nor can it be terminated by the death, unsoundness of mind or insolvency of the donor to prejudice such interest created by the donor in favour of the donee.
