Stepmother can get share in ancestral property after death of father. My stepmother is asserting her share in the ancestral property, currently registered under my late grandfather's name, who passed away four years ago. The property is yet to be distributed, and my stepmother vacated our ancestral home three years ago, residing elsewhere with her daughter. The daughter, who lived with us before marrying 25 years ago and subsequently leaving our house, is now asserting her rights over the property. I seek advice on the validity of my stepmother and her daughter's claim to my father's property following his demise.
Asked from: Uttar Pradesh
Your stepmother, as the widow of your father, holds the right to ancestral property if it devolves upon the legal heirs following your father's demise. However, it's crucial to note that only coparceners are entitled to a share in ancestral property. Despite not being a coparcener, the widow gains a share in the ancestral property upon her husband's death and the subsequent partition.
During the partition of ancestral property, it is distributed among all legal heirs of the deceased father. The widow, in this case, your stepmother, is recognized as a Class I heir under the Hindu Succession Act of 1956. According to this act, a widow holds the status of a Class I heir, granting her the right to inherit her deceased husband's property. Class I heirs are given priority in the succession process, receiving preference in inheriting the assets of the deceased.
In the Mitakshara school of Hindu law, coparceners have specific rights in ancestral property. The concept of coparcenary is integral to Mitakshara law, and it defines a system of joint family property where male descendants up to four generations are considered joint heirs.
Under Mitakshara coparcenary, the key rights include:
- Right by Birth: A male member of a Hindu joint family, known as a coparcener, acquires a right in the ancestral property by virtue of birth.
- Equal Share: Coparceners have an equal share in the ancestral property. This means that each coparcener, regardless of their generation, has an equal entitlement to the property.
- Right to Seek Partition: A coparcener has the right to demand a partition of the ancestral property. Partition involves dividing the property among the coparceners, giving each a distinct and independent share.
- Survivorship: In the absence of a partition, the principle of survivorship applies. If a coparcener dies, his share in the ancestral property passes on to the surviving coparceners.
It's important to note that the Mitakshara coparcenary system has undergone changes through legal reforms, particularly with the Hindu Succession (Amendment) Act, 2005. The amendment abolished the concept of coparcenary in favor of a more equitable distribution of property, ensuring daughters' rights as coparceners as well. For more legal help please visit Kanoon India.
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School authorities are creating a private nuisance. I have been living in a residential area for more than 17 years. There is a school behind our house, and it does not have any wall connecting to our house. Recently, they have constructed a horse shed without any wall, using iron pillars. Now, I am unable to sleep in my bedrooms due to the horses kicking on my wall and the noises they create. Additionally, I am unable to use my rooftop because of the foul smell generated by their excreta. The condition of my wall is deteriorating due to this shed. I had previously approached the SDM office, but the opposing party allegedly bribed the official. What legal remedy should I pursue against the school authorities?
Asked from: Uttar Pradesh
If you are experiencing continuous disturbance caused by a school—for example, horses being kept on the premises—you may have a valid legal claim under the law of torts for private nuisance. The nuisance in such a case may not only arise from the physical presence of horses but also from the improper management of horse excreta, which produces unpleasant odours affecting the surrounding environment. Such activities can significantly interfere with your right to peacefully use and enjoy your property.
In situations like this, you have the option of filing a civil suit against the school authorities. Through such a suit, you may seek an injunction to restrain them from continuing the nuisance. In addition to stopping the disturbance, you can also claim compensation for the inconvenience, discomfort, and any damage that the nuisance has caused to your property. Since court proceedings may take time, you should also consider seeking a temporary injunction to prevent further harm during the pendency of the case.
Private nuisance, in legal terms, refers to an unreasonable interference with a person’s use or enjoyment of their land by the actions of another. It is treated as a civil wrong under the law of torts, and individuals who suffer harm as a result of such interference are entitled to seek remedies before the court.
Common examples of private nuisance include loud and continuous noises, offensive odours from waste or animals, environmental pollution, or vibrations that disturb the normal use of property. In each of these cases, the test is whether the interference is both substantial and unreasonable. For a successful claim of private nuisance, three important elements must be established.
- First, there must be an interference with the enjoyment of land that goes beyond minor irritation or trivial inconvenience.
- Second, the interference must be unreasonable, which is judged by factors such as the locality, the nature of the neighbourhood, and the duration of the disturbance. What is considered acceptable in one locality may not be reasonable in another.
- Third, there must be evidence of actual harm or damage in the form of physical injury to property, significant discomfort, or loss of enjoyment.
The remedies available in cases of private nuisance include damages in the form of monetary compensation, injunctions directing the wrongdoer to stop the interference, or in some cases, a combination of both. Courts generally balance the rights of the property owner against the conduct of the other party to determine what relief is appropriate.
If you find yourself affected by the actions of school authorities in this manner, it is advisable to act promptly by initiating legal proceedings. A well-prepared claim supported by evidence of the disturbance and its impact on your property can strengthen your case for both injunctive relief and compensation.
Horses have damaged the wall but so far as the foul smell is concerned, I have no evidence to prove. That odor is very acrid and unbearable. If the court seek prove of physical damage then I can prove it through the photographs but I am unable to prove the odor. Please advice whether it is mandatory to prove actual harm or it is only directory?
Follow-up question
In private nuisance, actual harm is not always required where the interference itself is substantial, unreasonable, and materially affects the enjoyment of property. The law recognizes that not all injuries to property rights can be measured in terms of physical damage or monetary loss.
In most cases of private nuisance, the claimant is expected to prove actual harm—such as physical damage to property, substantial discomfort, or interference with the normal enjoyment of land. However, the law recognizes certain situations where proof of actual harm is not strictly necessary.
One such situation arises when the interference is continuous and unreasonable. For example, persistent loud noise, foul odours, or constant vibrations can themselves establish nuisance. In these cases, the very nature of the interference is sufficient, and the court may presume harm without requiring the claimant to produce evidence of measurable damage.
Another instance is when the interference involves a material invasion of rights. Private nuisance is fundamentally about protecting the right to use and enjoy land. If a neighbour discharges sewage, keeps animals that generate unbearable smells, or obstructs light and air, the wrongful interference itself is actionable. The claimant does not always need to show actual injury or financial loss.
There are also circumstances where damage is presumed by law. Certain activities, such as the emission of noxious gases, dust, or foul smells, inherently cause harm. Even if the claimant cannot show physical injury to their property, the interference is considered sufficient to give rise to liability.
Finally, if the interference is substantial by its very nature, courts may not insist on proof of actual loss. Persistent and intolerable disturbances—such as unbearable smells, continuous noise, or pollution—are actionable because they significantly diminish the quality of life and the enjoyment of property, even if no financial loss is proved.
In essence, while actual harm is usually required, the law makes exceptions where the interference itself is so unreasonable, substantial, or inherently damaging that it becomes actionable without further proof.
Read also: How to stop unauthorized entry of persons in my property?
My wife and her family does not allow to meet my daughters since 1 year. My elder daughter is of 3 years and younger is of 10 months but they not allow me to meet them. many times me and my family members try to take her back to house but she demand to do property on her name .since 1 year she is with her parents she did not even tell me how is my daughter's and did not allow to talk to them on call.
Asked from: Uttar Pradesh
Your wife and her family members do not have the right to keep you away from your children. It is a serious matter that they do not allow you to meet your daughters. If your wife has been living separately for more than two years without sufficient reasons, you can file a suit for the restitution of conjugal rights. In such a situation, you have the right to compel your wife to live with you.
Your younger daughter is only ten months old, and at this age, a mother cannot deprive the father of love and affection towards his daughter. Therefore, you can claim custody of your daughters. In this situation, you have the option to claim either the restitution of conjugal rights or file a habeas corpus writ.
If the period of desertion is less than two years, you can file a habeas corpus writ in the high court against your in-laws. The court will summon your wife and her parents to justify the reasons for not allowing the father to meet his daughters. If they fail to provide valid reasons, the court shall direct your wife and her parents to allow you to meet your children.
In Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42 the hon’ble supreme court has held that:
The child is only 1½ years old and the child was with the father for about four months after her birth. If no custody is granted to the first respondent, the Court would be depriving both the child and the father of each other's love and affection to which they are entitled. As the child is in tender age i.e. 1½ years, her choice cannot be ascertained at this stage. With the passage of time, she might develop more bonding with the appellants and after some time, she may be reluctant to go to her father in which case, the first respondent (father) might be completely deprived of her child's love and affection. Keeping in view the welfare of the child and the right of the father to have her custody and after consideration of all the facts and circumstances of the case, we find that the High Court was right in holding that the welfare of the child will be best served by handing over the custody of the child to the first respondent.
Habeas corpus proceedings are not meant to justify or examine the legality of custody. Habeas corpus proceedings serve as a medium through which the custody of the child is brought to the discretion of the court. Habeas corpus is a prerogative writ, constituting an extraordinary remedy. The writ is issued in circumstances where, in the particular case, the ordinary remedy provided by the law is either unavailable or ineffective.
Based on the facts of your case, it appears that a habeas corpus writ is the most suitable option, especially if the period of desertion is less than two years. Initiating a lawsuit for custody under the Guardians and Wards Act is a time-consuming process. Therefore, opting to file a habeas corpus writ is a good choice for you to pursue the custody of your children. For more legal help please visit Kanoon India.
Stepmother adopted a son when she already has a biological son. Father died. Mother got second marriage they adopted her child. In this situation who would the father and grandfather of the child?
Asked from: Bihar
Stepmother cannot adopt a son when she already has a biological son from her deceased husband. In the past, females were restricted from adopting without the consent of their husbands. Unmarried or widowed women faced even more limitations in adoption. However, with the passage of time and a shift in societal perspectives, personal laws have undergone changes. This transformation is codified in 'The Hindu Adoptions and Maintenance Act, 1956,' explicitly stating that females are now allowed to adopt children, provided they are of sound mind and not minors. This right has also been extended to widows.
According to section 8 of the Hindu Adoptions and Maintenance Act, 1956:
Any mentally sound adult female Hindu, not being a minor, possesses the capability to adopt a son or daughter. However, if she has a living husband, she may only adopt with his consent, unless the husband has completely and definitively renounced the world, ceased to be a Hindu, or been declared by a court of competent jurisdiction to be of unsound mind.
According to section 12 of the Hindu Adoptions and Maintenance Act, 1956:
From the date of adoption, an adopted child shall be recognized as the child of the adoptive father or mother for all legal intents and purposes. Consequently, all familial ties of the child in their birth family shall be considered severed and replaced by the new ties established within the adoptive family.
According to Section 11 of the Hindu Adoptions and Maintenance Act, 1956:
In the case of adopting a son, the adoptive father or mother must not have a living Hindu son, son's son, or son's son's son (whether through legitimate blood relationship or adoption) at the time of the adoption.
In your case, if the widow has adopted a son, that adoption is illegal because it violates the provisions of Section 11. The widow has a biological son of her deceased husband. Hence, she is being a widow cannot adopt a son. However, she can adopt a daughter only. In the prevailing situation such an adoption is in violation of Section 11, therefore, it is void. For more legal help please visit Kanoon India.
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Husband denied accessing my matrimonial home. I resided with my husband for a duration of five months in an apartment. The house is registered in the name of my father-in-law, yet my in-laws reside in a different state. I am the individual who invested all of my finances in the interior and household accessories for the house. This decision was made under the understanding that it is my residence, and consequently, I am accountable for its furnishings. I willingly accepted and utilized my entire salary for this purpose.
However, my husband is engaged in an extramarital affair and desires to marry his girlfriend. He is pressuring me to initiate a divorce and is also subjecting me to physical harassment. In response, I have filed for a Domestic Violence Complaint (DVC) seeking a residential order. Unfortunately, I am being denied access to my home, with the explanation that it belongs to my father-in-law. I am in need of assistance; please help me.
Asked form: Uttar Pradesh
Your husband cannot deny accessing your matrimonial home because it is a shared household, and you have right to reside there. In Satish Chandra Ahuja vs Sneha Ahuja [(2021) 1 SCC 414] the Supreme Court has discussed the interpretation of the definition of a "shared household" under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005.
The court addresses whether a shared household is limited to a joint family residence or one in which the husband has a share. The court highlights that the definition includes a household where the aggrieved person has lived in a domestic relationship with the respondent, whether owned or tenanted jointly or individually.
The court emphasizes the permanency of a woman's residence for security and underscores that the purpose of the legislation is to protect women. It concludes that the Act grants an entitlement to women for the right of residence in a shared household, irrespective of their legal interest in it, in order to fulfill the Act's purpose of providing effective protection to women victims of domestic violence.
Hence, you'll certainly obtain a residential order from the court in your DV case. You have initiated a proper case against your husband to regain access to the matrimonial home. In the meantime, you should file a civil suit for an injunction against your husband to prevent the solemnization of a second marriage.
You have evidence to prove that your husband is planning to marry the person with whom he has had an extramarital relationship. Legally married individuals can obtain an injunction order from the court and compel their spouse to refrain from solemnizing a second marriage.
Bigamy is an offense punishable under Section 494 of the Indian Penal Code. If your husband solemnizes a second marriage without obtaining a divorce from his first wife, he commits the offense of bigamy. For more legal help please visit Kanoon India.
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Terminated from service on the ground of bigamy. Enlisted in the Indian Army in 2001, I married in 2006. While on duty in Arunachal Pradesh, my wife engaged in an extramarital relationship with a civilian, prompting me to send a legal notice for divorce. We divorced in 2013 after she initially filed a divorce and maintenance case in 2010, which we later resolved through mutual consent. In the same year, she also accused me of bigamy, leading to termination from the Army. Seeking guidance on the appropriate course of action in this matter.
Asked from: Bihar
You have omitted some vital facts. However, based on the facts and circumstances of your case, the termination order appears legal, and there is no impediment. In 2010, your wife filed a complaint and simultaneously initiated a divorce case on the grounds of bigamy.
It is important to note that marriage does not dissolve by giving a legal notice; a decree from a competent court is mandatory for the dissolution of marriage. Although you divorced in 2013, the offense of bigamy occurred when you solemnized another marriage after sending a legal notice and during the subsistence of the first marriage.
Therefore, you are not entitled to reinstatement because the termination order passed by the competent authority is legally valid and has no defects. If you file an original application in the Armed Forces Tribunal, it will likely dismiss your case.
Petroleum Explosives Safety Organisation (PESO) issues license to Bharat Petroleum Corporation's petrol pumps for storage of Petrol/Diesel. A petrol pump of BPCL illegally filled diesel in a tanker beyond the permissible limits for which a complaint was lodged by me with PESO. PESO asked for an explanation. In its reply, the BPCL officer under reported the quantity of diesel filled in the tanker and in support of his claim, submitted a forged sales data which was prepared after deleting sales entries from the computerised records.
Asked from: Assam
The fact that the sales data was forged was brought to the notice of PESO by me after PESO shared BPCL's reply with me. PESO again questioned BPCL to which they confirmed that their dealer had deleted entries from the data. Subsequently, PESO has written to the police to take action under the Petroleum Act according to which the offence is bailable whereas I am asking PESO to file an FIR since forgery of data, preparation of a false document and its use as a genuine one is a serious offence under the IPC. The PESO officer refuses to do so. Is he right in not filing an FIR ? Am I unjustified in demanding an FIR in the matter?
Your stand is correct because the accused has committed offence of forgery and prepared an instrument to prove his innocence. In this case the proper course of action would be to lodge an FIR. However, if the proceeding has been initiated under the Petrolium Act, the court has the power to add relevant section if found that accused has committed a crime.
It is better for you to recommend FIR because it at any stage your credibility is examine you defend yourself. In the departmental recommendation soundness and reasonableness are the key factors. So, you should protect yourself from any future perversity by recommending FIR.
Can court decide the matter under section 372 succession act summarily or as a civil suit. Whether section 372 of the Indian succession act provides summary proceedings? Can court adjudicate the dispute in the proceedings of code of civil procedure? In this case the non applicant wants that the court should hear and decide the case as a civil suit.
Asked from: Uttar Pradesh
Section 372 of the Indian Succession Act, 1925, does provide for summary proceedings. It allows for a simplified and quicker process for obtaining probate or letters of administration. However, whether the court can adjudicate the dispute under the proceedings of the Code of Civil Procedure (CPC) depends on the specific circumstances and the preference of the parties involved.
If the non-applicant wishes the court to hear and decide the case as a civil suit rather than through summary proceedings, they may express this preference in their petition or application before the court. The court will consider the nature of the case and the interests of the parties involved.
In some cases, the court may allow for a more detailed and formal adjudication under the provisions of the CPC, treating it as a regular civil suit. However, the court's decision to follow summary proceedings or the CPC will depend on various factors, including the complexity of the matter and the need for a detailed examination of evidence.
Can victim lodge FIR after forceful abortion. My cousin was in a relationship with a boy from a different religion for three months. They were serious and were planning to get married in future. However my cousin became pregnant by accident. When the boy informed his parents they immediately restrained him from contacting my cousin. She got an abortion done without taking a single rupee from them. She is unable to contact the boy as his parents have taken complete control. Now my cousin wants to lodge an FIR against the boy. She doesn't have any money and she lives all alone in the city where the boy and his family lives. If my uncle and aunt find out they will throw her out of the house. In such a scenario can she lodge and FIR and go to court?
Asked from: Madhya Pradesh
Yes, a victim has the right to lodge a First Information Report (FIR) after a forceful abortion. If someone has been subjected to a forceful abortion, it can be considered a criminal offense, and the victim can report the incident to the police. The police will then initiate an investigation based on the information provided in the FIR. The relevant sections of the IPC that may apply in such cases include:
Section 312 IPC: Causing Miscarriage
"Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Essential elements of the Offense:
- The accused must voluntarily cause a woman with child to miscarry.
- If the miscarriage is not done in good faith for the purpose of saving the life of the woman, it becomes an offense.
- The punishment varies depending on whether the woman is quick with child (i.e., the fetus is capable of independent life outside the womb).
The section provides for an exception if the miscarriage is caused in good faith for the purpose of saving the life of the woman. In such cases, the act is not considered an offense.
Section 313 IPC: Causing Miscarriage without Woman's Consent
"Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if the woman is quick with child, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, with fine, and, if the woman dies, shall also be liable to punishment for culpable homicide."
This section criminalizes the act of causing a miscarriage without the woman's consent, regardless of whether the woman is quick with child (i.e., the fetus is capable of independent life outside the womb) or not.
Elements of the Offense:
- The accused commits the offense of causing miscarriage without the woman's consent.
- The punishment varies based on whether the woman is quick with child.
- If the woman dies as a result of the act, the accused may also be liable for culpable homicide.
Punishment:
- If the woman is not quick with child, the punishment is imprisonment for life or imprisonment of either description for a term up to ten years, and the accused may also be liable to a fine.
- If the woman is quick with child, the punishment is more severe, with imprisonment for life or imprisonment of either description for a term up to ten years, along with a fine.
- If the woman dies due to the act, the accused may face additional punishment for culpable homicide.
Section 315 IPC: Act done with intent to prevent child being born alive or to cause it to die after birth
Section 315 of the Indian Penal Code (IPC) deals with the act of preventing a child from being born alive or causing it to die after birth. Section 315 read as follows.
"Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose only of preserving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both."
Elements of the Offense:
- The accused must perform an act before the birth of a child.
- The act must be done with the intention of preventing the child from being born alive or causing its death after birth.
- If the act results in preventing the child from being born alive or causing its death, and if it is not done in good faith for the sole purpose of preserving the life of the mother, it becomes an offense.
Punishment:
- The punishment for the offense is imprisonment of either description for a term that may extend to ten years, or with a fine, or with both.
Exception:
- The section provides an exception if the act is done in good faith for the sole purpose of preserving the life of the mother. In such cases, the act is not considered an offense.
Based upon the facts you can lodge FIR in any of the above-mentioned sections which squarely covers your case. If pregnancy was at too early-stage section 315 will apply. In case, it was at the advance stage then section 312 & 313 will apply depending upon the mental state of the victim.
