My husband used to give me threats to face grave consequences if I disclose his illicit relationship. He has an illicit relationship with some women of easy virtue therefore he gives such treats. I became very frustrated out of such threats, therefore, decided to end my life. I have two young children so I cannot take such a harsh step and leave my children in destitution.
However, I have left my matrimonial home because of continuous threats and cruel behaviour of my husband. My in-laws are a very kind nature person, therefore, I don't want to tell that truth. Can I file a cruelty case against him?
Certainly, you can file a complaint against him for the offence of cruelty. The act of cruelty is punishable under section 498 A of Indian Penal Code (IPC). Your husband has been giving threats with the purpose to shut your mouth so his act is the amount to cruelty under section 498 A.
Cruelty is willful conduct of husband which is likely to cause grave injury or danger to life. In your case he intentionally giving such threats, therefore, creates a danger to your life. He knows that you can disclose his illicit relationship therefore he has been giving such threats.
In Laxman Ram Mane vs. State of Maharashtra, (2010) 13 SCC 125 it is held by the Supreme Court that:
"An illicit relationship of a married man with another woman would clearly amount to cruelty within the meaning of Section 498-A."
You have been facing mental distress because of such threats. Such illicit relationship may cause mental harassment as well as mental distress. You have to prove that such threats may cause grave injury or danger to life, limb or health either mental or physical.
You can also adduce some evidence that such illicit relationship has ruined your marital life therefore you have lost companionship, affection, love or sexual relationship.
In Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 the Supreme Court has opined that
“Marital relationship” means the legally protected marital interest of one spouse to another which include a marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on.
In Gananath Pattnaik v. State of Orissa [(2002) 2 SCC 619 the Supreme Court has held that
"Cruelty, as defined in section 498 A IPC, does not necessarily require physical harm. Even mental torture or abnormal behaviour may amount to cruelty or harassment in some cases."
In Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 the Supreme Court has opined that
Mental cruelty indeed varies from person to person. It depending upon the intensity and the degree of endurance. If such act causes mental trauma, harassment or torture to the wife then definitely it amounts to cruelty.
You can file a complaint under section 200 of the code of criminal procedure in order to initiate criminal proceeding against your husband. If you have evidence like some intimate photographs etc. then it will establish your case. If you filed the complaint along with sufficient evidence then the court will immediately take cognizance and issue process against your husband.
I seek your advice in respect of correction in the land record. A Khatauni is showing the incorrect name of my father so I want to correct his name in Khatauni. Due to the negligence, his name had wrongly entered in "khatauni". It may create trouble when I'll sell this land, hence, I want to correct the revenue record as soon as possible. What is the procedure in Uttar Pradesh land revenue code for correction in land records?
Asked from: Uttar Pradesh
You can get a correction in the land record under the provisions of the U.P. Land Revenue Code. First, you should do some inquiry and inspect the revenue records. Sometimes mistakes occur during the revision or updation of the records. Therefore, the record (Khatauni) shows inconsistent information in its later versions.
When a mistake is reflecting in two versions of the same record then you can get correction by producing the certified copies of those records. No need to produce any additional evidence in support of that correction. The revenue officer will correct the latest version of that record with his remark.
Khatauni
The annual register is also known as "Khatauni" and the collector maintains it on the interval of six-year (section 33 of the U. P. Land Revenue Act 1901). Khatauni keeps the record of all persons who are cultivating or otherwise occupying the land. The annual register is an amended version of the record of rights (Khasra) which incorporates all changes or corrections occurred in the last six years.
Correction proceeding in Uttar Pradesh Land Revenue Code 2006
The procedure of correction in the land record has provided in section 32 & 38 of the Uttar Pradesh Land Revenue Code 2006. The Sub-Divisional Officer, Tehsildar or Revenue Inspector shall record all changes in the revenue records such as Khatauni, Khasra and Map etc. According to section 38, the Tehsildar shall receive the application for correction in the revenue records. Thereafter, he shall conduct an inquiry and refer the case along with his report to the Sub-Divisional Officer.
If a person has any objection against the proposed correction then he may file his object to the Sub-Divisional Officer (SDO). The applicant may produce any evidence in the support of correction. The SDO shall consider the report of Tehsildar, all the objections and the evidence thereupon he shall decide the case.
Appeal against the order of Sub-Divisional Officer
The person, who aggrieved from the order of Sub-Divisional Officer, can file an appeal to the Commissioner within thirty days from date of such order. The decision of Commissioner shall be final. However, a person who is still feeling aggrieved can file revision petition before the Board of Revenue under section 210 of the U.P. Land Revenue Code 2006.
The Uttar Pradesh Land Revenue code provides the explicit procedure to remove any irregularity in the revenue records. Land Revenue Code 2006 has consolidated entire proceedings towards revenue matters.
File an application for correction in khatauni
You should file an application in the court of Tehsildar for the correction in khatauni. The Tehsildar is the competent officer to accept an application for correction in land records. You file the application in the form of a civil suit and adduce all the evidence in support of correction. The evidence should be relevant and admissible.
- You may produce a certified copy of Khatauni, Khasra etc which are bearing inaccurate records.
- A copy of voter ID Card, high school certificate etc. to prove the correct name of your father.
Produce relevant evidence
You need a certified copy of the khatauni which is bearing the incorrect information. Take a certified copy of the exact Fasli year during which your grandfather died and property devolved on your father. This is an important piece of evidence to prove your father's right in the property.
After taking of the certified copy of revenue record you should collect supportive evidence of the correct information. That evidence should tend to show that the information in the revenue record is incorrect. The Tehsildar will base his finding on the basis of that supporting evidence hence that evidence is the most important for you.
Preliminary inquiry
Tehsildar will conduct a preliminary enquiry about the mistakes occurred in the revenue records. He shall hold a preliminary inquiry to find out whether the correction in land record is necessary. Thereafter he shall prepare a report upon finding of that preliminary enquiry and he'll refer the matter to the SDO (Sub Divisional Officer). If the correction is pertaining to the map then he shall refer the matter to the Collector.
The proceeding under section 32 & 38 of LR Code is a judicial proceeding so SDO shall decide the matter with formal judgment. This is a summary proceeding and it has no major legal technicalities in order to the correction of revenue record.
An application under section 32/38 should be accompanied by current khatauni that is duly certified by the Lekhpal. This procedure is generally called 32/38 Mukaddma.
Position before LR Act 1950
Prior to the commencement of the UP ZA & LR Act 1950, there were two records of rights for each village. One was "Khewat" and another was "Khatauni". But, after the said Act of 1950, there are only one records of right remains in force i.e. khatauni. If any error occurred in khatauni after 1950 then you should take a certified khatauni for Fasli year 1362. Thereupon, produce that khatauni (Fasli year 1362) along with the application under section 33/39.
Sir, my father name is Shamser Singh in all his documents except in in voter id card. The revenue record bears his name as Sher Singh. Sir due to this fault my father is unable to receive benefits from government schemes. Sir how can my father get his name to be corrected in revenue record. Sir as above mentioned problem what will be the exact solution.
Question from: Uttar Pradesh
Uttar Pradesh Land Revenue Code 2006 is prevailing in U.P. Section 38 devises a procedure to get correction in the land revenue record. Tehsildar has the power to correct any material defect in map, field book (Khasra), record of rights (Khatauni) etc. You should file an application to the Tehsildar along with all the evidence which tend to prove your father's correct name.
The Tehsildar shall make an inquiry and prepare a report. Thereafter, he shall refer the case along with report to the Sub-Divisional Magistrate for decision on the case. The Sub-Divisional Magistrate may invite objection and examine the evidence then he will decide the case. This is the correct solution of your problem.
Father’s name is correct but my name is wrongly mentioned in khatauni: how to correct this?
Question: wrong name entered in land record how to correct father name is correct but our name is wrong entered in khatauni or land records so please tell us how to correct enter my name in all records.
Asked from: Uttar Pradesh
You should move an application to the Tehsildar under Section 32/38 of the Uttar Pradesh Land Revenue Code 2006 for correction in khatauni. Your name is incorrectly mentioned in the khatauni so you should adduce evidence like a copy of Aadhar Card/PAN/driving licence etc which proves your correct name.
Identity card issued by the government is sufficient to prove the correct name of the applicant. The court shall admit this evidence and correct your name after receiving the report of Lekhpal.
Related
The child has given in adoption as per astrological advice so as to save his life. A widow of a lower caste community adopted the child for the purpose of superstition that child will live long. Of course, the child actually is given and taken with an ulterior motive.
Thereafter the child lives with his biological parents because the adoptive was illusory. The child thus claiming his right in the property of the natural family. The main contention, therefore, is whether it is valid under section 11(vi) of HAM 1956. There was no intention to give the child in adoption because the child has been living with biological parents. Is the adoption valid?
Actual or physical giving and taking of the child is an essential requirement for the purpose of valid adoption under section 11(vi) of the Hindu Adoption and Maintenance Act 1956 (HAM Act).
In Lakshman Singh Kothari v. Rup Kanwar, (1962) 1 SCR 477: AIR 1961 SC 1378; the Supreme Court observed that when an adoptive father puts his hand on the head of adoptive son so as to receive the child in adoption, therefore, he sufficiently compliances with the Hindu law doctrine of “giving and taking”.
However, under section 16 of the said Act, the law presumes that adoption is valid in devoid of relevant evidence. Indeed it is rebuttable presumption thus the court may reject this presumption upon production of some contrary evidence. [Modan Singh v. Sham Kaur (AIR 1973 P&H 122)].
Jai Singh vs Shakuntala, (2002) 3 SCC 634 A valid adoption requires that child must be actually given and taken by the parents or guardian concerned with intent to transfer the child from the family of its birth to the family of its adoption.
In fact, the statutory provision of HAM Act had not been followed therefore it is invalid. The adoptive father is the sole guardian therefore he should live with his adoptive father.
But in your case he has been living with his biological parents therefore this adoption is an act of deception in the eye of law because they not performed given and taken ceremony. The intention of an adoptive father is most important in order to the performance of the given and taken ceremony. If the adoptive father has no such intention thus he cannot claim that he is the adoptive father.
In your case adoptive mother had no such intention instead of it she had the intention to follow some superstition for the purpose of giving life to the child. The old custom has lost in antiquity after enactment of HAM Act. The child has the right to claim his share in the property because he is still the natural child. He has the right to live with natural/biological parents because he is never given in adoption.
What is the limitation period for setting aside the sale of the ancestral property? My father sold ancestral property against the consent of my family. I was minor at the time of sale. Can I file any suit for cancellation of that sale deed?
In India, ancestral property holds a special significance for Hindus. It is often passed down through generations and is considered a symbol of family heritage. However, there may be situations where a family member may sell the ancestral property without the consent of other family members. In such cases, the affected family members may want to challenge the sale and get the property back. One of the ways to do this is by filing a civil suit.
If a son desires to set aside the sale of the ancestral property, he can file a civil suit for cancellation of the sale deed. The limitation period for filing such a suit is three years when the buyer takes possession of the property. The limitation period starts from the date when the buyer takes possession on the basis of a sale deed.
However, if the son was a minor at the time of sale, he can file the suit within three years after attaining the age of eighteen years. Article 60 of the Indian Limitation Act states that a minor person should file such a suit within three years from the date when he attains the age of majority, which is eighteen years.
In cases where a guardian has been appointed by the court for the minor child, his age of majority will be considered twenty-one years. Therefore, he can file the civil suit within three years after attaining the age of twenty-one years.
My father has gifted entire ancestral property to his daughter-in-law. He made the gift with an ulterior motive, which I don’t want to discuss here. I want to file suit for cancellation of that gift deed. Is it possible?
It is not within your father's rights to gift the entire ancestral property to his daughter-in-law. Ancestral property has a unique nature, and children (coparceners) are co-owners of the property along with their father, possessing the right to the property by birth. As a result, the father cannot transfer the entire property without the consent and agreement of his children.
If your father wishes to gift the property, he can only gift his own portion of it. Before making the gift, he must partition the property and divide the share of each coparcener. If the property has not been partitioned, your father cannot demonstrate that he has the exclusive right to gift the entire property. Additionally, your father cannot gift the shares of other coparceners without their consent, and the Hindu personal law does not provide the "Karta" the right to transfer whole ancestral property to any individual at his discretion.
Transfers made for pious, religious obligations or for the benefit of coparceners do not require the consent of coparceners. However, in your situation, giving the property to your daughter-in-law does not serve any pious purpose or benefit the coparceners. As a result, this transaction is invalid.
To cancel the gift deed, you must file a civil suit. For a gift to be valid, the donor must have exclusive rights to the property. Since your father has no exclusive rights to the entire gifted property, the gift is not valid. If your father wanted to gift the entire ancestral property to his daughter-in-law, he could have done so with your consent. However, since you object to the transfer, you may bring a suit for the cancellation of the gift deed.
A person intentionally treated the lease document as leave and license. He is trying to evict the person in whose favour that lease deed is executed. What are the ingredients of lease and leave & license?
A licence is a power or authority to do some act which, without such authority, could not lawfully be done. In the context of immovable property, a licence is an authority to do any act which would otherwise be a trespass. It passes no interest, and does not amount to a demise, nor does it give the licensee an exclusive right to the use of the property.
The intention of the parties is the most important fact in the determination of nature of the right in respect of leave and licence. The Bombay High Court in the case of Sohanlal Naraindas v. Laxmidas Raghunath Gadit [(1966) 68 Bom LR 400] has held that the intention of the parties and exclusive possession were important elements to decide actual and real nature of the right in respect of the immovable property.
Exclusive right to use or enjoy the immovable property is the deciding factor whether there is lease or licence. In M.N. Clubwala v. Fida Hussain Saheb [(1964) 6 SCR 642, 653] the supreme court of India emphasised that if the exclusive possession to which a person was entitled under an agreement with a landlord was coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease.
As far as your case is concerned, according to the agreement you have exclusive right to use said premised on the fixed rent. When rent is fixed and interest of the property has transferred in order to say consideration or rent it shall be construed as lease instead of leave and licence. If permission to use land without exclusive possession was alone granted, a licence was the legal result.
Therefore, you have right over the property to use it for the stipulated period mentioned in the agreement. The landlord’s contention that you are a licensee shall not be sustained. You can claim compensation if the lease agreement is terminated before the completion of the stipulated period.
I have filed a divorce petition, but we are ready to get a divorce by mutual consent. Can we move afresh petition or court can entertain it as a petition for mutual divorce?
Section 13 of the Hindu marriage act mentions some grounds for divorce. The section follows the guilt theory. Therefore, one party to the marriage is bound to prove the guilt of others to get a divorce and end their nuptial knot. The court shall not grant the divorce if the guilt of other party does not prove.
In some exceptional cases, the guilt theory creates a tough situation because parties bound to live together in the absence of proof of guilt. However, their marriage becomes fail.
Section 13-B of the Hindu marriage provides a remedy in such exceptional cases. It provides a solution to end their nuptial knot if both parties agree to do so. If both parties are admitted to get a mutual divorce, they can file a petition for mutual consent divorce under section 13-B.
If divorce petition under section 13 of the Hindu marriage act has filed due to want of evidence of guilt, parties may request to treat it as the petition of divorce by mutual consent.
In Rajiv R. Hiremath v. Uma, (2000) 10 SCC 303; the supreme court of India opines that if both the parties have agreed to get a decree of divorce by mutual consent, they can do so by preparing an agreement of compromise and place it before the court.
Related: Irretrievable breakdown of marriage in Hindu Marriage Act
How to enforce the arbitration clause bearing in the agreement? If the partnership firm is unregistered, its partner cannot file any suit against the firm for the enforcement of any right. As well as an unregistered firm cannot file any suit against the third party for the enforcement of any right of the firm. Section 69 of the Indian Partnership Act, envisaged that:
No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
Section 69 put a bar on the filing of a suit where an unregistered firm or its partner is filing such suit in their respective capacity. If a cause of action arises from an act of an unregistered firm and it affects right and liability of a third party, such third party can sue the firm irrespective of the fact that firm is unregistered.
Section 69 is not exhaustive; a partner of an unregistered partnership firm can sue the firm for settlement of accounts of the firm or dissolution of the firm. Hence, the exception is available only for two purposes like a) for the dissolution of the firm b) for the settlement of accounts of a dissolved firm. No suit shall be filed for any other purpose. Therefore, you cannot sue your firm for the enforcement of contract and sending of disputes for its settlement, to an arbitrator.
In Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd. [AIR 1964 SC 1882]Since the right to resort to arbitration flows from the contract between the parties contained in the partnership deed, a suit or any other proceeding by a partner to enforce this term in the contract against the other partners would, therefore, normally be barred under the first part of sub-section (3) of Section 69.
Prem Lata v. Ishar Dass Chaman Lal [(1995) 2 SCC 145] an arbitration clause in a partnership deed of an unregistered partnership can be enforced for the purpose of securing, inter alia, a dissolution and accounts of the partnership or for enforcing any right or power for obtaining the property of a dissolved firm.
If dispute thereof is to the settlement of accounts of the firm by an arbitrator, you can enforce it because exception of section 69 provides that an unregistered firm can be sued for dissolution of firm and settlement of accounts of a dissolved firm. Therefore, accounts will be settled by an arbitrator but only in the case where a firm has dissolved. If a firm has not dissolved and an ongoing partner wants to settle its accounts, no such suit, as a partner, can be filed by him.
Can court convert the divorce case filed under section 13 of the Hindu Marriage Act into the Divorce of Mutual Consent under section 13B of the same Act? I filed a divorce case under section 13 at Jhansi Family court. The opposite party i.e. my wife, never appeared in the court. Now my wife has agreed to divorce on a mutual consent basis at Vadodara. She is working at Vadodara. Now she is telling me that first you have to withdraw the case (sec13). After that, we can file a case under 13B. Is it legal to file a case under 13B without withdrawing the existing divorce case. Is it mandatory to withdraw an existing case under section 13 before filing a case under 13B.
Section 13 of the Hindu Marriage Act 1955 provides grounds for divorce. All the grounds mentioned in this section are based upon the guilt theory. The plaintiff is bound to prove the guilt of the defendant to get a divorce under the Hindu Marriage Act.
Section 13-B of the Hindu Marriage Act provides divorce by mutual consent. It is a special remedy for the parties if their marriage has irretrievably broken down, and they want to end the nuptial knot by their mutual consent. In mutual consent divorce, the spouses have to prove that they have been living separately for more than one year, they have agreed with their free consent that the marriage should be dissolved, and the parties have not been able to live together.
If a divorce petition is already filed under Section 13 of the Hindu Marriage Act, and at a later stage of the proceeding, both parties agree to proceed for mutual consent divorce, they can do so. They can withdraw the divorce petition and file a fresh petition under Section 13-B. A divorce petition filed under Section 13 does not automatically convert into Section 13-B on the application of parties.
Consent of parties is the essential part of divorce under Section 13-B. Therefore, the court must be satisfied that the consent of parties is not obtained by force, fraud, or undue influence, and they have mutually agreed that the marriage should be dissolved.
Under Section 13-B(2), the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud, or undue influence.
In Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, if one of the parties at that stage says that "I have withdrawn my consent," or "I am not a willing party to the divorce," the court cannot pass a decree of divorce by mutual consent.
In mutual consent divorce, the consent may be withdrawn by any party at any time or stage of the proceeding but before the passing of the decree. Mutual consent should continue until the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce.
My husband does not interest to maintain me. He used to absent in the court proceeding and later on claimed that our marriage is void due to not solemnised as per the Hindu ritual. I am legally wedded wife, hence can he refused to pay maintenance under section 125 CrPC?
Section 125 of the Code of Criminal Procedure (CrPC) is a social legislation that aims to provide a faster process for maintenance. It entitles a destitute wife to receive alimony if she is unable to maintain herself from her own sources. However, only a legally wedded wife is entitled to receive maintenance under this provision.
For a marriage to be considered legal or valid, it must be solemnized according to personal laws, customs, and enacted laws that are applicable to the parties involved. Although the Hindu Marriage Act, 1955, does not require mandatory ceremonies for a valid marriage, the solemnization of marriage according to customary rites and rituals is necessary for a valid marriage.
If your marriage was solemnized according to the mandatory ceremonies prevalent in your community, then it is considered valid. Your husband cannot deny the existence of the marriage during proceedings under Section 125 of the CrPC to defeat your right to maintenance.
Maintenance rights are available only to legally wedded wives, not to mistresses or wives of bigamous marriages. A wife cannot file more than one application under Section 125 of the CrPC to seek maintenance.
Court judgments, such as D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469, Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999) 7 SCC 675, and Yamunabai case (1988) 1 SCC 530, have upheld that only a legally wedded wife has the right to claim maintenance under Section 125.
To claim maintenance, it is crucial to prove that the marriage is valid and that you are the legally wedded wife. Once proven, your husband will be obligated to pay alimony. However, Section 125 does not confer a separate right but provides a faster procedure to execute maintenance rights. The Supreme Court has interpreted the provisions of Section 125 of the CrPC liberally to enable the wife to receive maintenance.
