Wife’s right in joint family property

Does a wife have any right in joint family property? I am a helpless lady. My husband refused me without any reason. My marital home situated at Vardaman. What is the law regarding the right of a woman in marital property? 

“Hindu law does not grant any right to wife in her marital home’s property, their only chance of getting anything is on inheritance, as equal share with the sons and daughters, if the marriage was subsisting on the death of the husband.”

The husband alone has the right and capacity to hold all means and property. A legal presumption about the property of Hindu is that it is a joint Hindu property (joint family property). The senior-most member of the family performs the role of Karta. Karta is the manager of the Hindu Joint family. Therefore, he manages all property. 

Joint Hindu family is no legal entity because it has no status in the absence of its members. However, a coparcenary is a legal institution constituted by the members of three generations of male heirs in the family.

All members including the daughters have right in the joint Hindu family property. Daughters are included in the meaning of coparcener by the amendment act of 2005. Unfortunately, the mother, wife and daughter-in-law still have no such right as the daughter. Even, they are members of the joint family.

Section 18 of the Hindu Adoptions and Maintenance Act provides that wife to be maintained by her husband during her lifetime. Section 19 of the same Act, speaks of the right of maintenance of a widowed daughter in law from her father in law. 

Wife has no such right to enjoy joint Hindu property as experienced by the other members of the joint family.

Wife has only one remedy, i.e. to receive an amount in the form of maintenance. The Hindu Succession Act 1956, enacted in the 1950s to remove the gender bias from the Hindu law. 

Moreover, it provides that the death of a man would result in a deemed partition of his share in the joint property. This partitioned share would then be distributed equally among his children and widow. His self-acquired property shall be divided equally among his sons and daughters and widow.

But the question is whether the wife has the right to get a partition of her husband’s ancestral or self-acquired property as a matter of right? 

In the present situation of law, the wife has no such right. Hindu succession act was amended in the year 2005 to give daughter a share in the Hindu joint family. The only daughter got such right and wife still relegating.

Unfortunately, the wife is still being ousted of the coparcenary system. The amendment, therefore, by itself cannot offer much to Hindu women. Moreover, its owner can dispose of such property during his lifetime by gift. It can be bequeathed by will to anyone of his choice. A Hindu father can disinherit his wife or daughter by will, in his self-acquired property.

All women of the family including daughters and wife are members of the Hindu joint family. They have an absolute right to be maintained out of the joint family properties. Daughters have a right to marriage expenses. Wife and widows have the right to be maintained for life out of the joint family property.

Hindu law does not grant any rights to wives in marital property, their only chance of getting anything was on inheritance, as equal share with the sons and daughters, if the marriage was subsisting on the death of the husband. On divorce, of course, even that right to inheritance disappears. Wife has a right only in the deceased man’s ‘‘notional’’ portion.

She can’t get her part of “notional” share by a partition, she has to wait until the partition is claimed by sons or male member of the joint family. After the divorced wife has only one right to get maintenance out of her husband’s property if the husband fails to or refuses to maintain.

How to file RTI (Right to information) application against the government

How to file RTI? Right to Information Act 2005 commonly known RTI Act, mandates timely response to citizen requests for government information. The Act makes it obligatory for every public authority to make suo-motu disclosure in respect of the particulars of its organization, functions, duties etc. as provided in section 4 of the Act. A citizen who desires to obtain any information under the Act should make an application to the Concerned Public Information Officer (PIO) of the concerned public authority in writing in English or Hindi or in the official language of the area in which the application is made. Before filing the RTI you should follow these steps
  • Do a little background research.
  • Find out what information falls under the purview of the department concerned. Identify the department/subject of your query.
  • Is it a state or a central subject? 
  • Phrase your questions wisely and Attach court fee stamp or Indian Postal Order of worth Rs 10 with the application and keep a copy of it with you for future reference. (the payment of fee can also be made by way of cash to the Account Officer of the Public authority or to the Central Assistant Public Information Officer against proper receipt).
Objective of RTI  The basic object of the RTI Act is to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense. What is information Information is any material in any form. It includes records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form. It also includes information relating to any private body which can be accessed by the public authority under any law for the time being in force. Format of application  There is no prescribed form of application for seeking information. the application can be made or plain paper. The application should, however, have the name and complete postal address of the applicant. Even in cases where the information is sought electronically, the application should contain the name and postal address of the applicant. If you want information from the central government except for the government of Delhi you can file the RTI online. Time limit for providing information
  • 30 days from the date of application.
  • 48 days for information concerning the life and liberty of a person.
  • 5 additional days if the above response time, in case the application for information is given to Assistant Public Information Officer.
In case the third party’s interest involved then time limit will be 40 days. First Appeal If an applicant is not supplied the information within the prescribed time thirty days or 48 hours, as the case may be, is not satisfied with the information furnished to him, be may prefer an appeal to the first appellate authority who is an officer senior in rank to the CPIO.  Such an appeal should be filed within a period or thirty days from the date on which the limit of 30 days of supply of information is expired or from the data on which the information or decision of the CPIO is received. The appellate authority of the public authority shall dispose of the appeal within a period of thirty days or in exceptional cases with 45 days of the receipt of the appeal. Second Appeal If the appellate authority fails to pass an order on the appeal within the prescribed period or if the appellant is not satisfied with the order of the first appellate authority, he may prefer a second appeal with the Central Information Commission within ninety days from the date on which the decision should have been made by the first appellate authority or was actually received by the appellant. Exempted information  According to section 8 of RTI Act, a citizen can’t get this information: Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence. The information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court. Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature.  Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information. The information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. Information received in confidence from a foreign government. Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes. The information which would impede the process of investigation or apprehension or prosecution of offenders. Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers. Information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information. Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over. Provided further that those matters which come under the exemptions specified in this section shall not be disclosed. Exempted organisations  These organisations are exempted from RTI Act and no information shall be given towards these organisations.
  • Intelligence Bureau,
  • Ministry of Home Affairs,
  • Directorate of Revenue Intelligence,
  • Ministry of Finance,
  • Central Economic Intelligence Bureau,
  • Ministry of Finance,
  • Directorate of Enforcement,
  • Ministry of Finance,
  • Narcotics Control Bureau,
  • Aviation Research Centre,
  • Special Frontier Force,
  • Border Security Force, 
  • Central Reserve Police Force,
  • Ministry of Home Affairs
  • Indo-Tibetan Border Police,
  • Ministry of Home Affairs
  • Central Industrial Security Force,
  • National Security Guard,
  • Research & Analysis Wing
  • The Cabinet Secretariat
  • Assam Rifles,
  • Sashastra Seema Bal,
  • Special Protection Group, 
  • Defence Research and Development Organisation,
  • Ministry of Defence Border Road Development Organisation, 
  • Financial Intelligence Unit,
  • India Directorate General Income Tax (Investigation), 
  • National Technical Research Organisation, 
  • National Security Council Secretariat.

Character certificate

The criminal records of a family member are examined for issuing of character certificate in Uttar Pradesh. District Magistrate has no power to examine the criminal record of the applicant’s family member in the issuance of a character certificate. Character certificate does not give the valid right to the applicant for doing any work based on the character certificate issued by the competent authority. In Manyata Dewi Vs State of Uttar Pradesh (25607/2013), it is held by the Supreme Court of India that the District Magistrate is the competent authority to issue character certificate but he is bound to issue character certificate based on rules made by the state government therein and the rules do not require to inquire criminal record of a family member of applicant and District Magistrate also can’t examine the personal capacity of the applicant towards the work for which character certificate is needed.

Amount of alimony in Hindu law

No fixed formula can be laid for fixing the amount of alimony. Right to alimony is an incident of the status from an estate of matrimony. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant. Conversely, requirements of the non-applicant, the income and property of the non-applicant and additionally the other family members to be maintained by the non-applicant have to be taken into all. Whilst it is important to ensure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comfort as in the matrimonial home, but it should not be so exorbitant that the non-applicant is unable to pay. Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar lifestyle she/he enjoyed in the matrimonial home. It should not expose the non-applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are:
  1. Status of the parties.
  2. Reasonable wants of the claimant.
  3. The independent income and property of the claimant.
  4. The number of persons, the non-applicant has to maintain.
  5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
  6. Non-applicant’s liabilities, if any.
  7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
  8. Payment capacity of the non-applicant.
  9. Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
  10. The non-applicant to defray the cost of litigation.
  11. The amount awarded under Section 125 Cr.PC is adjustable against the amount awarded under Section 24 of the Act.

Irretrievable breakdown of marriage

Irretrievable breakdown of marriage in India especially in respect of Hindu Marriage Act. Basic Principle The No-fault divorce is a divorce in which the dissolution of a marriage does not require a showing of wrongdoing by either party. It allows a family court to grant a divorce in response to a petition by either party of the marriage without requiring the petitioner to provide evidence that the defendant has committed a breach of the marital contract. Probably the most well-known no-fault law was enacted in the state of California, and signed by Governor Ronald Reagan, coming into effect on January 1, 1970. At that time, lawyers and judges objected to the legal fictions used to bypass statutory requirements for obtaining a divorce, which had become more commonplace since the mid-20th century. Since at least 1985, no-fault divorce has been available in all 50 U.S. states and the District of Columbia. Origin The earliest precedent in no-fault divorce laws was originally enacted in Russia shortly after the Bolshevik Revolution. They were legislated in the series of decrees that issued in early 1918. The decrees included non judicial dissolution of marriage by either party and mandatory provision of child-support. The purpose of the Soviet no-fault divorce laws was ideological, intended to revolutionize society at every level. California was the first U.S. state to adopt what are now called “no-fault” divorces in the United States in 1969. California’s law was framed on an earlier and roughly contemporaneous effort, of the non-governmental organization, National Conference of Commissioners on Uniform State Laws, which began drafting a model of no-fault divorce statute for states to consider in 1967. In India Vishnu Dutt Sharma versus Manju Sharma, 2009 (SC) : The Supreme Court of India in its decision held that On a bare reading of Section 13 of the Act, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. At one time, India used to have one of the lowest divorce rates in the world. Being a society largely based on a traditional value system, couples were both legally and socially dissuaded from seeking a divorce. At one time, India used to have one of the lowest divorce rates in the world. Being a society largely based on a traditional value system, couples were both legally and socially dissuaded from seeking a divorce. The wave of globalization in the nineties ushered in further changes in the Indian social institutions, especially in urban areas. Couples living and working in cities and metros, were exposed to more economic and relationship options, which prompted them to break out of unsatisfactory or unequal marriages. However, the divorce procedure in India continues to be one of the most protracted in the world, especially in cases where either party contests the divorce. Some common grounds for no-fault divorce are that the marriage is “irretrievably broken,” or parties to the marriage are mutually consent for divorce. Irretrievably broken The Rajya Sabha (Upper house of the Parliament) has approved an amendment to the Marriage Law Amendment Bill 2010, according to new section 13B, which would be incorporated in Hindu Marriage Act; marriage may be dissolved on the ground of irretrievable breakdown of marriage. Irretrievable means not able to be retrieved, recovered, or repaired. Legally speaking, “irretrievable breakdown of marriage” is defined as: The situation that exists when either or both spouses are no longer able or willing to live with each other, thereby destroying their husband and wife relationship with no hope of resumption of spousal duties. Until now “Irretrievable breakdown of marriage” is not a ground for divorce under Hindu Marriage Act 1955. So our legislature is trying to provide “Irretrievable breakdown of marriage” is a ground for divorce. Many NGOs have been demanding that wife is the most exploited party in failed marriage, she has no right to get divorce on the ground of “Irretrievable breakdown of marriage”, in each case she is required by the law to prove cruelty, desertion and other grounds provided in section 13 of HMA. Divorce by Mutual Consent is the fastest way to divorce but it is based upon the will of husband. If he refuses to give consent, wife has no remedy except to file petition under section 13. Section 13 of the Hindu Marriage Act, 1955 This section provides several grounds for divorce e.g. cruelty, adultery, desertion etc. but no such ground of irretrievable breakdown of the marriage has been mentioned for granting divorce. Marriage law amendment bill 2010 Law Commission of India in its 71st Report (1978) on “Irretrievable Breakdown of Marriage as a Ground of Divorce”, recommended amendments to the Hindu Marriage Act, 1955 to make irretrievable breakdown of marriage as a new ground for granting a decree of divorce among the Hindus. Clause 1 of Section 13: A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2010], on the ground that the marriage has broken down irretrievably. According to clause 2 of section 13C : The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition. The Irretrievable Breakdown of Marriage clause allows a woman to exit on the premise that she is unfulfilled or unhappy in a marriage after a three year period of separation. The wife also bears the right to block a divorce thrust upon her if she can prove she will be in grave financial hardship. Clause 1 of section 13D : Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage. This bill is still pending in Lok Sabha ( Lower house of the Parliament). Huge objections have been raised by different sections of our society against the proposed amendment. Members of Save Family Foundation(NGO), raised their voice that proposed amendments would emerge as a key instrument for dissolution of marriage, loss of family values and unrest our society with mass conversion from Hindu to other religion.

ALTERATION OF CHARGE

How does the court alter the charge under the code of criminal procedure? Alteration of charge may be taken place during the trial if the court found that there is sufficient material on record to show the commencement of any offence which is not charged by the court. The court is empowered under section 216 of the code of criminal procedure, to alter or add the charge at any time before pronouncement of judgment.  The phrase “At any time before judgment is pronounced” indicates that the power is very wide. This power should be used in an appropriate case and the court should also see that its order would not cause any prejudice to the accused. The interest of justice should be the ultimate goal in the use of this power. Section 228 of the Code in Chapter XVII and Section 240 in Chapter XIX deal with the framing of the charge during trial before a Court of Sessions and trial of Warrant -cases by Magistrates respectively. Whenever such alteration or addition is made the same is to be read out and informed to the accused. The legal position is well settled that at the stage of framing of charge the Trial Court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge, the Court is to examine the materials only with a view to being satisfied that prima facie case of commission of offence alleged has been made out against the accused person. Tulsabai v. the State of M.P.; 1993 Cri LJ 368(M.P.): at the time of framing of the charge, the Court need not make an elaborate enquiry. The order of framing charge even cannot interfere if prima facie materials are found. In Thakur Shah v. Emperor AIR 1943 PC 192; The Privy Council spoke on alteration or addition of charges as follows:  “The alteration or addition is always, of course, subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred.” In Jasvinder Saini and others v. State (Government of NCT of Delhi) (2013) 7 SCC 256; The Supreme court of India examined the scope of Section 216 CrPC and held as follows:  “Once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after the commencement of the trial.” The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is, all the same, trite that the question of any such addition or alteration would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court. In Hasanbhai Valibhai Qureshi v. State of Gujarat, AIR 2004 SC 2078: The supreme court is held that Whenever an application is moved for alteration or addition of the charge under section 216 of the code, the court should decide on a consideration of broad probabilities of the case, based upon the total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary. Section 216 of the Code does not provide any legal bar, he has done nothing but only brought to the notice of the court about the factual position of the material which has been collected by police during the investigation against the petitioners. The court has the power to examine the material and to pass the order for adding or amending the charge provided sufficient opportunity should be given either to defend the accused or prosecution to prove the charge against the accused persons. The Sessions Judge had no power, under the Code of Criminal Procedure, to drop any charges under which the accused had been committed for trial. He can in the exercise of the powers under s. 226 of the Code, frame a charge, or add to or otherwise alter the charge as the case may be in cases where a person is committed for trial without a charge or with an imperfect or erroneous charge. Quashing of charge State of Maharashtra v. Ishwar Piraji Kalpatri and others; 1996 Cri LJ 1127 SC: if on the basis of allegations a prima facie case is made out, High Court has no jurisdiction as to quash the proceedings and at the initial stage. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for the quashing of charge framed against them the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. The State Of Delhi vs Gyan Devi And Ors; AIR 2000 SC; The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence if any, cannot show that the accused committed the particular offence. Amit Kapoor vs Ramesh Chander & Anr; AIR 2012 SC: Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute no ‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge.

Right to property under article 300 A

Whether the right to property is a fundamental right under the constitution of India? The state government has acquired my land and does not giving fair price to my land as a compensation under the land acquisition act. Can I file a case before the supreme court for protection of my fundamental right? 

The right to property was originally included as a fundamental right under Article 19(1)(f) of the Indian Constitution, which guaranteed the "right to acquire, hold and dispose of property." However, this was removed as a fundamental right by the 44th Amendment Act of 1978 and made a constitutional right under Article 300A.

This means that the state can acquire property for public use and impose reasonable restrictions on the use of property in the interest of the general public. Additionally, the courts have held that the right to property is not absolute and can be limited by the state in the larger public interest.

Right to property under Article 300 A

The Indian Constitution guarantees a wide range of rights to its citizens, including the right to freedom, equality, and property. These rights are designed to protect the basic human rights of individuals and ensure that the state does not infringe upon them. However, over the years, the interpretation and application of these rights have undergone several changes, particularly with regards to the right to property.

The right to property was originally included as a fundamental right under Article 19(1)(f) of the Indian Constitution, which guaranteed the "right to acquire, hold and dispose of property." This right was seen as an essential aspect of the right to life and personal liberty, as it allowed individuals to acquire and possess property without interference from the state. However, this was removed as a fundamental right by the 44th Amendment Act of 1978.

The 44th Amendment Act was passed in the wake of the Emergency imposed by Indira Gandhi government in 1975. During the Emergency, the government had the power to acquire property without providing adequate compensation to the owners. This led to widespread dissatisfaction and protests. The amendment aimed at addressing this issue by making the right to property a legal right under Article 300A.

This means that the state can acquire property for public use and impose reasonable restrictions on the use of property in the interest of the general public. Additionally, the courts have held that the right to property is not absolute and can be limited by the state in the larger public interest.

The idea behind the amendment was to strike a balance between the rights of individuals and the needs of the state. On one hand, it ensured that the state could not arbitrarily acquire property without providing just compensation to the owners. On the other hand, it also allowed the state to acquire property for public use and impose reasonable restrictions on the use of property in the interest of the general public.

However, the removal of the right to property as a fundamental right has led to some controversy. Some critics argue that it has resulted in the erosion of the rights of property owners, as the state can now acquire property without providing adequate compensation. Others argue that the amendment was necessary to ensure that the state could acquire property for public use, such as for building roads, hospitals, and schools.

Despite the controversies surrounding the amendment, the right to property remains an important aspect of the Indian Constitution. It ensures that individuals have the right to acquire, hold and dispose of property without interference from the state. Additionally, it also ensures that the state can acquire property for public use and impose reasonable restrictions on the use of property in the interest of the general public.

Moreover, the right to property is not just a constitutional right but also it is a human right. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, recognizes the right to own property as a fundamental human right. It states that "Everyone has the right to own property alone as well as in association with others."

In conclusion, the right to property is a complex and multifaceted right that has undergone several changes over the years. While the 44th Amendment Act of 1978 removed the right to property as a fundamental right, it still remains an important aspect of the Indian Constitution. It ensures that individuals have the right to acquire, hold, and dispose of property without interference from the state, while also allowing the state to acquire property for public use and impose reasonable restrictions on the use of property in the interest of the general public. Additionally, it is also recognized as a human right by international laws.

Fair compensation under Article 300 A

Yes, under Article 300A of the Indian Constitution, fair compensation is to be given to citizens when the government acquires their property. This means that if the government takes possession of a person's property through the power of eminent domain, it must provide just compensation to the owner.

The concept of just compensation is based on the principle of "no gain without pain" which means that the owner of the property should not be put to any loss or disadvantage because of the acquisition of their property by the state. The compensation should be such that it should be sufficient to enable the owner to purchase an equivalent property.

The amount of compensation is determined by the government and can be challenged in court if the owner feels it is inadequate. The government also have the power to impose reasonable restrictions on the use of property in the interest of the general public.

In summary, Article 300A of the Indian Constitution ensures that citizens are not deprived of their property without receiving fair compensation for it. This ensures that the rights of property owners are protected and that the state does not unfairly benefit from the acquisition of property.

Article 300 A has no express provision that the government will pay compensation to the expropriated owner. In Kesavananda Bharati v State of Kerala AIR 1973 SC 1461; a majority decision of the Supreme Court held that

“The right to property was not part of the ‘basic structure’ of the Constitution, even after the Twenty-Fifth Amendment, the Court must inquire whether what is given as compensation is completely illusory or arbitrary.”

Right to property is still a constitutional right and the aggrieved person may challenge the acquisition proceeding under Article 226 of the constitution. He can seek justice from the High Court that the amount of compensation is unfair.

Albeit, the right to property is neither a basic structure of the Constitution of India nor a fundamental right but the court can test the fairness of compensation. If the amount of compensation is illusory then the court may set aside the acquisition proceeding.

In Jilubhai Khachar v State of Gujarat (1995) Supp (1) SCC 596; the Supreme Court held that the court can determine the principles on which the compensation was decided were relevant and the compensation awarded was not illusory.

The Supreme Court in KT Plantation Private Ltd v State of Karnataka (2011) 9 SCC 1; held that right to claim compensation is inbuilt in Article 300 A. A state can acquire the land only for the public purpose. The court can test the amount of compensation.

Principle of fair compensation

In the State of W.B. v. Bela Banerjee, AIR 1954 SC 170; the Supreme Court held that, however, the government has discretionary power of laying down principles for the determination of compensation. But such a principle must ensure that compensation should be just equivalent of full indemnification.

The compensation must be the prevailing market price of the property at the time of acquisition. Acquisition at the rate lower than the prevailing market price is illegal, unjust and violates the principle of fair compensation.

In Kesvanand Bharti vs State of Kerala AIR 1973 SC 1461, the Supreme Court reiterated that the government cannot arbitrarily decide the amount of compensation. Furthermore, compensation should not be illusory.

Thus the amount of compensation must be just and equal to the market price of the land. The 44th amendment act of 1977 has abolished the right to property as a fundamental right by deleting article 19(1)(f) and 31 from the Constitution of India. But it does not empower the government to acquire land paying inadequate compensation.

Meaning of property under Article 300-A

Article 300 A includes all types of property capable of being owned [Union of India vs Martin Lottery Agencies Ltd.(2009) 12 SCC 209]. It includes tangible, intangible, corporeal and incorporeal property. Article 300 A does not confine to land alone but includes intangible property like copyright, intellectual property rights, mortgage, money, any interest in the property, lease, license. The pension and gratuity are a valuable right of individuals therefore protected under article 300 A.

Enforce your right through the Court

If the state government acquires your land it has to give fair compensation which could indemnify. Indemnity is a sum of money paid as compensation against financial loss. You are entitled to claim compensation under Article 300 A even if the right to property is not a fundamental right.

Right to property is still a constitutional right and has some constitutional safeguards. You should invoke writ jurisdiction of the High Court under Article 226 and claim fair compensation for your land.

Conditions of Hindu Marriage

Conditions of Hindu Marriage

Marriage is an exclusive and sacramental union. Before the 1955 era, it was not so easy to get divorced from a Hindu person. Because as per Hindu Religion, the marriage considered as a pious knot. So we cannot find any provision for Divorce in uncodified Hindu Law that is known as, Shashtras, Puranas, Ved and other religious or holy books related to Hindu Religion. Hindus refined the institution of marriage and idealised it. In this process, they have laid down detailed rules covering practically all aspects of marriage. Under old Hindu law, the conditions required for a valid marriage were strict and elaborate. The legislature has modified the requirements by making various legislative enactments. Now the conditions are altered, liberalised or removed. Considering various stigmas in the social life of the Hindu, the parliament decided to enact laws related to the Hindu. However, it was a difficult task to do so. The Hindu Marriage Act, 1955 revolves around the valid marriage between the Hindu, Valid rites of Hindu marriage, provisions for maintenance and divorce. The Hindu Marriage Act, 1955 has simplified the law of marriage. The Hindu Marriage Act, 1955 does not prescribe any particular form of marriage. It merely lays down the conditions for a valid marriage. Now, the performance of marriage by the customary ceremonies prevalent in the community to which, the parties belong is necessary to render the marriage valid.

Conditions of marriage

The Hindu Marriage Act, 1955 have considerably modified the shastric conditions mentioned in Yajnavalkya smriti. Under old Hindu law, three conditions were mandatory for a valid marriage. The identity of caste between parties. i.e., the parties should belong to the same caste, unless sanctioned by custom. Parties to be beyond the prohibited degrees of relationship. i.e., were not of the same gotra or pravara and were not the sapinda of each other.  

Proper performance of ceremonies of marriage

From Vedic period, though monogamy has been the rule, polygamy as an exception, existed side by side. The laws relating to ‘anuloma’ marriages allowed a man more than one wife. However, the wife who was first wedded was alone the wife in the fullest sense. Manu allowed a second marriage to a man only after the death of his wife. However, under certain circumstances, he allowed a second wife. Hindu Marriage Act, 1955 prohibits polygamy & polyandry. Sec.5 of Hindu Marriage Act, 1955 provides that “neither party has a spouse living at the time of marriage” This clause strictly enforces monogamy and prohibits polygamy and polyandry. Section 17 of the Hindu Marriage Act makes it a penal offence for both Hindu males and females under Sections 494 and 495 I.P.C. * Polygamy permits a man to have more than one wife simultaneously. * Polyandry allows a woman to have more than one husband simultaneously. The second condition of a valid marriage requires that the parties to the marriage are of sound mind and are not suffering from any mental disability to be unfit for giving valid consent. The Hindu Marriage Act, 1955 originally laid down that neither party to the marriage should be an idiot or lunatic. Under this Act, the union of the idiot or lunatic was only voidable.

Soundness of mind

Section 5(ii) of the Hindu Marriage Act, 1955 laid down that: “Neither party to the marriage should be an idiot or lunatic at the time of marriage”. Every kind of ‘unsoundness of mind’ is not covered. The unsoundness of mind should be such, which incapacitates a person from giving a valid consent to the marriage. It need not be persistent or continuous unsoundness of mind. It may exist just before the wedding. The Marriage Laws (Amendment) Act, 1999 has omitted epilepsy. Thus now there is no condition of the marriage that a party to a marriage should not suffer from ‘recurrent attacks of epilepsy. The Hindu Marriage Act, 1955 makes “free consent” a necessary element of a valid Hindu marriage.

Age

Under Section 5 (iii) of the Hindu Marriage Act, 1955 the minimum age at the time of marriage for the girl is 18 and 21 for the boy. The Shastric law does not lay down any age for marriage. Child Marriage Restraint Act, 1929: (Sarda Act): The Act of 1929 enacted by the efforts of Rai Saheb Harbilas Sarda for the object of checking the evil of the child marriage. In this enactment, it laid down that at the time of marriage, the bride must have completed 14 years and the bridegroom 18 years. Later on, by an amendment, the marriageable age of girls was raised to 15 years. A boy or a girl younger than this was declared a “child” and child marriage was made punishable. Nevertheless, it was a valid marriage. The Sarda Act, 1929 was enacted with a modest purpose in view. It does not purport to prohibit child marriages; it merely wants to restrain them. A new Act, i.e. Prohibition of Child Marriage Act, 2006 has replaced the 1929 Act. According to that Act, the minimum age for the bride is 18 years at the time of marriage, and for the bridegroom, it is 21 years. Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he had reasons to believe that the marriage was not a child marriage. Every child marriage whether solemnised before or after the commencement of this Act shall be voidable at the option of the contracting party who was a child at the time of the marriage.

Prohibited degrees of relationship

Section 3, cl. (g) And Sec.5 (iv) of the Hindu Marriage Act, 1955 deals with prohibited degrees of relationship. Section 5, cl. ( iv) prohibits marriage between persons who are within the prohibited degrees of relationship with each other. According to Section 3(g), two persons are said to be within the degrees of prohibited relationship:
  • If one is a lineal ascendant of the other; or
  • If one was the wife or husband of a lineal ascendant or descendant of the other; or
  • If one was the wife of the brother or the father’s or mother’s brother or the grand father’s or grand mother’s brother or the other; or
  • If the two are brother and sister, uncle and niece, aunt and nephew or children of brother and sister or of two brothers or two sisters.
  • However, if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship, then such union will be valid and binding.

Elements of dowry death

Sati and dowry death has plagued this nation for centuries. Sati, the practice of sending a widow to her husband’s funeral pyre to burn in it. It was first outlawed under British Rule in 1829 and 1830 under the Governor-Generalship of Lord William Bentinck in the Bengal, Madras and Bombay Presidencies. Dowry death  It was and still a menace to our society. The Parliament responded much earlier, the Dowry Prohibition Act, 1961. By the above said Act, provides minimum sentence and penalty for the giving or receiving of dowry. This specific menace, however, was tackled by the insertion of a new provision in 1986 in IPC as section 304-B together with another new provision Section 113 B of the Evidence Act. Elements 
  1. If a woman dies by any burns or bodily injury or otherwise than under normal circumstances 
  2. Where she dies within seven years of her marriage. Also, shows that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry.
Explanation: For this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Section 113-B Indian Evidence Act Presumption as to dowry death

When the question is whether a person has committed the dowry death of a woman and prosecution shows that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation: for this section “dowry death” shall have the same meaning as in Section 304-B of Indian Penal Code (45 of 1860).The ingredients of the offence under Section 304-B have been stated and restated in many judgments. Any burns or bodily injury must have caused the death of a woman or her death must have occurred otherwise than under normal circumstances. Such death must have occurred within seven years of her marriage, and soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband. Appasaheb v. the State of Maharashtra, (2007) 9 SCC 721; the Supreme Court construed the definition as it forms part of Section 304-B which is part of a penal statute. The court held that a demand for money for defraying the expenses of manure made to a young wife who in turn caused the same demand to her father would be outside the definition of dowry. Sher Singh v. State of Haryana, 2015 the word ‘soon before’ finds a place in Section 304-B, it necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304-B. Dinesh v. State of Haryana, 2014 The expression “soon before” is a relative term as held by this Court, which is required to consider under the specific circumstances of each case and no straight-jacket formula can be laid down by fixing any time of allotment.

lease and licence

To ascertain whether a document creates a lease and licence, the substance of the material must be preferred to the form. Whether they intended to create a lease of a licence. If the document creates an interest in the property, it is a lease; but if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negatived the intention to create a lease. At one time it was thought that the test of exclusive possession was infallible and if a person Were given sole possession of premises, it would conclusively establish that he was a lessee. However, there was a change, and the recent trend of judicial opinion is reflected in Errington v. Errington, wherein Lord Denying reviewing the case law on the subject summarizes the result of his discussion thus:- Although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. If all one finds is that somebody has been in occupation for an indefinite period with no special evidence of how he got there or of any arrangement being made when he went into the occupation, it may be said that there is a tenancy at will. The modern cases establish that the question in all these cases is one of intention:-  Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land? In the case of Rajbir Kaur and Another v. Ms S, Chokesiri and Co., [1989] 1 SCO 19, the Supreme Court considered and held that ultimately the question whether a transaction is a lease or licence “turns on the operative intention of the parties and there is no single, simple litmus test to distinguish one from the other. In Mrs M.N. Clubwalq V. Fida Hussain the Supreme Court held that “Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement.” In the absence of a written document and when somebody is in exclusive possession with no special evidence how he got in, in such cases exclusive possession of the property would be the most relevant circumstance to arrive at the conclusion that the intention of the parties was to create a lease. Further lease or licence is a matter of contract between the parties. Section 107 of the Transfer of Property Act among other things provides that leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession; if it is a registered instrument, it shall be executed by both the lessee and the lessor. The contract between the parties is to be Interpreted or construed on the well-laid principles for the construction of contractual terms, viz, for construction of settlements, the intention of the parties is the meaning of the words they have used, and there can be no intention independent of that meaning; when the terms of the contract are vague or haying double intendment one which is lawful should be preferred; and the construction may be put on the instrument perfectly consistent with his doing only what he had a right to do.