Important provisions of Civil minor Acts(Part 1)

 

1) Important provisions of motor vehicle Act

https://www.lawweb.in/2019/09/important-provisions-of-motor-vehicle.html

2) Important provisions of The family courts Act 1984

https://www.lawweb.in/2023/09/important-provisions-of-family-courts.html

3) Important provisions of Maharashtra Regional and town planning Act 1966

https://www.lawweb.in/2022/08/important-provisions-of-maharashtra.html

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Notes on applicability of custom in Indian law

 Definition of Custom: 

As per S 3 of Hindu Marriage Act, 

1. the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

Custom, in the context of law, refers to a long-established practice or rule of conduct that has gained the force of law within a particular society or community. It is a source of law that complements statutory law. Customs are often unwritten and transmitted orally from generation to generation, but they can also be found in written records, such as ancient texts or court decisions.

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Hindu Adoption and maintenance Act 1956 (maintenance provisions only)

 Chapter III

MAINTENANCE

18. Maintenance of wife.—(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,—

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) 13[* * *]

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

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What is distinction between preferential right" under S.22 of Hindu Succession Act and right of Pre-emption?

The term preferential right and pre emption are not the same.

The remedy of "preferential right" under S.22 of Hindu Succession Act  can be exercised before the sale transaction. The section says that when the co-sharer proposes to transfer his share, the other co sharer can apply for purchase of said share. This situation can arise when co sharer enters into oral or written agreement to sale with third party.

Once the sale is complete, the remedy is to apply for right of pre emption. This right is recognized by some state Acts or by custom or byprecedents. In the absence of statutory provision, the right can be exercised as civil right.

If the Court grant decree of pre emption, naturally the earlier sale deed requires to be cancelled. Because, if earlier sale deed remains in existence, it will affect the plaintiffs/pre emptor right in property. The previous vendee will be entitled for consideration amount in lieu of cancellation of his sale deed.

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What is difference between succession and survivorship as per Hindu Succession Act?

Prior to enactment of Hindu Succession Act 1956,on the death of one coparcener of joint family,other coparceners of joint family were getting property of joint family by survivorship and was not inherited by his legal heirs. This rule was partly abrogated by Hindu Succession Act 1956 and totally abrogated by Hindu Succession Amendment Act 2005.Now joint family property is inherited by legal heirs of deceased and not by other coparceners of joint family. Joint family property passes to legal heirs of deceased by succession or inheritance. 

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Important Notes on Hindu Law

1) Notes on Hindu succession Act 1956 as amended in the year 2005

https://www.lawweb.in/2019/05/notes-on-hindu-succession-act-1956.html

2) NOTES ON JOINT FAMILY PROPERTY UNDER HINDU LAW

https://www.lawweb.in/2018/06/notes-on-joint-family-property-under.html

3) NOTES ON HINDU MARRIAGE ACT

https://www.lawweb.in/2018/06/notes-on-hindu-marriage-act.html

4) Notes on changes brought about by Hindu Succession( Amendment) Act,2005

https://www.lawweb.in/2018/06/notes-on-changes-about-by-hindu.html

5) Whether family of son will inherit property of father if son murders his father?

https://www.lawweb.in/2019/07/whether-family-of-son-will-inherit.html

6) Partial partition of joint Hindu family property can be permitted in exceptional circumstances

 If suit for partition were allowed to be instituted in fragments, the jurisdiction of the trial Court and the forum of appeal might be altered; it might be of paramount importance to a party litigant whether he should have a first appeal or a second appeal to the High Court, and whether he should at all be permitted to seek the judgment of the judicial committee with regard to the matters in controversy. The rule further ensures a just partition; parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts. It need not be disputed that there may be a very special cases where the application of the rule may be justly relaxed."

14. In Kenchegowda v. Siddegowda, , the Hon'ble

Supreme Court held that "when all the joint family properties are not made the subject-matter of the suit, nor the co-sharers have been impleaded, the suit for partial partition is not maintainable,"

Bombay High Court

Govindrao S/O Gangaramji Ajmire vs Dadarao @ Shrawan S/O Gangaramji ... on 6 April, 2004

https://www.lawweb.in/2013/09/partial-partition-can-be-permitted-in.html

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What is difference between stridhan and dowry?

 Although ‘Stridhan’ and ‘Dowry’ are entirely different, they are generally misconceived to mean the same. Under Indian law, dowry means any property or valuable security that is given or agreed to be given by the bride’s side to the bridegroom’s family before, after or during the time of marriage. The main difference between ‘dowry’ and ‘Stridhan’ is the element of “demand, undue influence or coercion” that is present in the former but absent in the latter. Stridhan is a gift that is voluntarily given to the women and it is not the result of demand, undue influence or coercion.

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Leading Supreme Court Judgment on Divorce on ground of Irretrievable Breakdown of Marriage

Irretrievable Breakdown of Marriage

61. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.

62. The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory.

63. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond J., in a passage which has now become classic, enunciated the breakdown principle in these word:

The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this Court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.

64. In the Report it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fagade, when the emotional and other bounds which are of the essence of marriage have disappeared.

65. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

66. On May 22, 1969, the General Assembly of the Church of Scotland accepted the Report of their Moral and Social Welfare Board, which suggested the substitution of breakdown in place of matrimonial offences. It would be of interest to quote what they said in their basis proposals:

Matrimonial offences are often the outcome rather than the cause of the deteriorating marriage. An accusatorial principle of divorce tends to encourage matrimonial offences, increase bitterness and widen the rift that is already there. Separation for a continuous period of at least two years consequent upon a decision of at least one of the parties not to live with the other should act as the sole evidence of marriage breakdown.

Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

67. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behavior as bring the institution of marriage into disrepute.

68. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

69. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

70. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.

71. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.

72. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 812 of 2004

Decided On: 21.03.2006

Naveen Kohli Vs. Neelu Kohli

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Leprosy No More Ground For Divorce : Personal Laws (Amendment) Act 2019

MINISTRY OF LAW AND JUSTICE
(Legislative Department)

New Delhi, the 21st February, 2019

The following Act of Parliament received the assent of the President on the 21st February, 2019, and is hereby published for general information:—

THE PERSONAL LAWS (AMENDMENT) ACT, 2019

NO. 6 OF 2019

[21st February, 2019.]

An Act further to amend the Divorce Act, 1869, the Dissolution of Muslim Marriages Act, 1939, the Special Marriage Act, 1954, the Hindu Marriage Act, 1955 and the Hindu Adoptions and Maintenance Act, 1956.

BE it enacted by Parliament in the Seventieth Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

1. Short title and commencement.

(1) This Act may be called the Personal Laws (Amendment) Act, 2019.

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Leading judgment of Supreme court on Divorce by mutual consent

Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period Under Section 13B(2), it can do so after considering the following:

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year Under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 Code of Civil Procedure/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

19. The waiver application can be fled one week after the first motion giving reasons for the prayer for waiver.

20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 11158 of 2017 

Decided On: 12.09.2017

 Amardeep Singh Vs. Harveen Kaur

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

Civil appeal No: 11158/2017.
Citation:(2017) 8 SCC 746,AIR 2017 SC 4417.

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