Parental intrusion ruining couples' marital life:Delhi high court

Parental intrusion ruining couples' marital life:Delhi high court

NEW DELHI: The interference of parents in the married life of their daughters has become a major cause for playing havoc with the lives of young couples post marriage, theDelhi high court has said.

Expressing concern over rift between couples due to parents' persistent interference in their daughter's married life, Justice Kailash Gambhir upheld a lower court's decree of divorce to a man on the ground of his in-laws' frequent interference in his marital life.

Justice Gambhir said parents should draw a line to let their daughters lead happy married lives.

"All parents guide, teach and discipline their daughters and are concerned about their welfare after marriage but it is imperative for parents to draw a line as the prime concern should be that their daughter is happily settled in a new atmosphere at the husband's place," he said.

But, it should not mean day-to-day monitoring of the affairs taking place at the matrimonial home of the daughter, he said.

Parents should not become uninvited judges of problems of their daughter, become an obstacle in the daughter's married life, plant thoughts in her mind and gain control over her and promote disharmony in her family life, the judge said.

"They are expected to advise, support and believe in their upbringing maintaining a discreet silence about the affairs of the matrimonial relationship," the court said.

"The present case is an unfortunate example where the parents of the appellant, instead of putting out the fire have fuelled and fanned it," the court said, dismissing an appeal filed by the wife challenging the lower court's order granting the man decree of divorce.

According to the husband, the difference with his wife started a few months after their marriage in 1990 due to frequent interference of his in-laws.

He alleged that he was even hit publicly by his father-in law two years after his marriage.

Seeking decree of divorce, he had approached the court, which allowed his plea on the grounds of cruelty by his wife due to continuous interference by his in-laws.

So, Unwanted intrusion  into their children's married life create a lot of problems leading to divorce.

Court procedure for layman & beginners -

CIVIL

•  Preparing PLAINT (in duplicate) along with Verifying affidavit, valuation slip, vakalatnama, list of documents, Interim Application(IA), process, copies for the other side.
• Plaint: Plaint should be prepared as per order VII of the C.P.C and should file Under Sec.26 R/w Order VII R.1 & 2.  in plaint:
• a) the description of the parties should be mentioned.  after the cause title and than 
• PLAINT FILED U/S 26 R/W O VII R 1 & 2 SHOULD BE TYPED.
• in first para of the plaint the story of the case should be mentioned and the facts leading to file the suit should be mentioned. 
• in second para cause of action of the case
• in third para the jurisdiction of the court both pecuniary and territorial jurisdiction of the court should be mentioned.
• in fourth para the limitation of the case
• in fifth para a statement stating the no similar petition or suit is filed in any court should me mentioned.
• in sixth para the valuation of suit and the court fee paid perticulars.
• in seventh para prayer of the suit.like under
• hence it is prayed this Hon'ble court may be pleased to grant a judgment and decree in favour of Plaintiff and as against the defendant/s as under
• a) to decree the suit of plaintff there by ( mention the relief sought)
• b) grant any other relief or reliefs in favour of plaintiff as against defendant in the pendency of the suit.
• c) to grant costs of the suit to the plaintiff, in the interest of justice.
• List of documents filed by plaintiff should be mentioned.
• Verification: 
• I, the above named plaintiff do hereby declare that the contents of above paras from para No:1 to Para No:X are true to the best of my knowledge and from para No:Y to para No:z are belived to be true from the information of my council.  Hence verified on this    th       day   of 2011 in the office of Sri.    xyz .
• after the verification the place and date should be typed.

the front page should be half by width should be typed this is called docket. containing the name of the court and parties and nature of plaint and filed on, filed by and counsel for Plaintiff etc., 

• 
  

• Filing of plaint before CMO (Sherestedar) – paying court fee & process

• After numbering, the file will come before the court.

• Hearing on IA no.1 (if any IA filed)
• If IA is allowed, comply with the order. [compliance is sending IA copy to the other side by Reg. Post and filing affidavit to that effect in the court]

• On every interim application there will be stages as follows IA by either of the party – objection by the other side – hearing – order on IA

• Or the court will issues notice/summons to other side.

• Return of notice
• If other side appears they will file vakalat or they will be placed ex-parte.

• If notice is not served to the other side

Steps to reissue the summons to be taken by filing process.

• Written statement - If the other side appears It will be posted for Written statement of defendants

• Issues – after filling of W.S the court will frame issues.

• Evidence – after issues, evidence of plaintiff (PW) by way of filing affidavit and exhibiting the documents

• Cross examination – Cross examination of plaintiff

• Evidence – evidence of defendant by way of filing affidavit and exhibiting the documents

• Cross examination – cross examination of defendant.

• Argument – argument by plaintiff

• Argument – argument by defendant

• JUDGEMENT

CRIMINAL

• FIR – complaint to police - register FIR.

• INVESTIGATION – on investigation they arrest accused

• Produce – accused will be produced before the Magistrate

• Bail – application for bail is to be filed

(if bailable u/s 436, non bailable u/s 437 before Magistrate)

• Objection – APP will file objections

• Hearing – court will hear the matter

• Order – Order on bail

• Final Report – the police will file Final Report i.e. Charge sheet

[if the offences are triable by sessions court, the court will commit the matter to the sessions court]

• HBC – court will hear the matter before charge

• Charge – Charges framed by the court. Read over to the accused and ask them whether they are guilty. If the accused denies the guilt then it will be posted for trial.

• Trail – court will issue summons to the Witnesses for trial

•  Examination in chief -  chief examination of witnesses by APP

•  Cross examination – Cross examination by Adv. for accused.

• 313 statement – read over by judge to the accused.

• Argument – arguments by both sides

• JUDGEMENT

• If in FIR offences alleged are exclusively triable by Sessions Court then a separate Criminal Misc is to be filed before the Sessions court for bail.

• Criminal Misc – Criminal Misc petition for bail is to be filed before sessions court along with certified copy of FIR & complaint.

• Notice to PP – Court will issue notice to PP

• Objections – PP will file objections

• Hearing – court will hear the matter

• Order – order on bail.

After filing of the charge sheet the lower court will commit the matter to Sessions court and session court will after framing the charges, fix the dates for trial and same procedure of evidence will be followed.

Admissibility of An Unregistered Document In Evidence -

The question of admissibly of Unregistered document is matter of discussion always at legal faternity. I am trying to add some valuable inputs into this topic. At the outset, It is settled legal position that an unregistered document does not become void just for want of registration. It is a valid document and admissible as collateral evidence. In this article we are talking about those document which ideally should be registered but remain unregistered because of various reasons and produce before court as evidence. Outlook on the relevant provisions: Section 68 of Evidence Act says that a document, which should be registered under the law, should not be used as evidence until at least one attesting witness has given the testimony but the proviso says that any non-testamentary document would not require the attesting witness unless the document worthiness is not questioned. Section 17 of Registration Act give provision of the documents which should mandetarily registered beyond all doubts and Section 49 do the provision for ‘Effect of non-registration of document required to be registered’ and proviso ( c ) be received as evidence of any transaction affecting such property on conferring such power, unless it has been registered Section 35 of Indian Stamp Act says that ‘ No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by the law or consent of parties authority of receive evidence unless such instrument is duly stamped’. Section 33 of the Stamp Act says that Court has power to impound an unregistered document to take them as evidence Legal precision is necessary to get clarity in some what complex and provisions which are crossing each other Court’s View: This point is very well elaborate by Courts at various Judgements.In view of the proviso to section 17 & Section 49 of Registration Act read with section 68 of the Evidence Act, even an unregistered document could be read and used as evidence for collateral purposes.(Bhanwarlal & others Vs. Heera Lal (MPLJ 2001(2), Page 502). It can be seen for the collateral purpose but it could not be read as admissible evidence and the executors and witness of the document should examine the testimony of the unregistered document. ( Phoolbai and Others Vs Kodulal and others, 1973 Jlj Short Note, 20, Page 17). The nature of the collateral evidence (unregistered document)) does not require to be effected by registered document. The admission in unregistered document, which amounted to declaration of title in the property, could not be used in evidence. Just by marking a document as an exhibit does not dispense with its proof and exhibiting a document without establishing by testimony of the executor or witness, shall not give any effect event to a registered document. (Sait Tarajee Khimchand and others Vs Yelamarti Satyam and others AIR 1971, Sc Page, 1865) . Even the content of Thirty Years Old document could not be presumed to be true by virtue of presumption attached to such document. ( Mohinnumddin and others Vs President Municipal Committee Khargoan) 1993, JLJ page 67. The admission of the content of a document is best evidence that an opposite party can rely upon, unless it is successfully withdrawn or proved erroneous. (Narayan Bhawantrao Gosavi Vs. Gopal Vinayak Gosavi & oth. AIR, 1960, SC Page 100) The Court Procedure for impounding : When plaintiff produced a unregisterd document before court then at evidence, court may order the plaintiff to impound the document and take the original document in its custody. Court, then send the document to registration office for calculation of the stamp duty and registration. The amount to be deposited with the court. Registrar then stamped the document and send back to court with certificate of registration. Court then asks the parties on testimony and oral evidence for the document Conclusion : Therefore, as a conclusion it can be said that unregistered document is weak evidence. It is treated as collateral evidence and the attesting witnesses should give their testimony for the same. The unregistered document shall be asked for Impunding by the court before to take it as evidence. After completion of process of impounding of document, the testimony of witness shall start. Though, court may skip this based on circumstances and fact of the case. Remember, Legal hirers of the attesting witness are not competent and trustworthy witness. Merely exhibiting a document does not serve any purpose, no matter, whether it is unregistered or a registered document.

WILL : all aspects

One wants to make sure that the life he has led has been meaningful and dignified in all aspects. A person, who ownsproperty in any form, is definitely concerned about his property after his demise. A Will is an important document which enables the individual /any living person to rightfully leave his assets and wealth to who ever he chooses to, after his death. In a way a person can ensure that his wishes with respect to his assets and property are followed after his death.
There often arise complexities when a person dies without a Will. It is a little effort that goes a long way, not leaving our family in any kind of turmoil, after our death. Some people execute writings, prepared by themselves or with the help and advice of well-meaning friends or relatives. Often, these turn out to be useless in law during implementation, after the death of the person. The crux is that the absence of a will or the invalidity of a will or parts of a will often generates problems for the legal heirs and successors.

AFTER THE DEATH OF A PERSON, HIS PROPERTY DEVOLVES IN TWO WAYS:

• According to the respective law of Succession
• when no will is made; By way of will i.e. testamentary

LAW OF SUCCESSION

The laws of inheritance are diverse and complicated. The rules of distribution of property in case a person dies without making a will are defined by every Law of succession. These rules provide for a class of persons and percentage of property that will be inherited by such persons. It must be remembered that it is preferable that one should make a will to ensure that one's actual intension is manifested.
It often happens that, due to ignorance of law, people fail to make a proper, enforceable will. Consequently, confusion ensues and often, the rightful heirs do not receive their fair share.
WWhen a male dies unexpectedly or where there has been a tragic demise and there is no will, it often creates problems for the legal heirs and successors. This can result in unintended injustice. The property passes to the minor children, the surviving wife and to the mother of the deceased (although not on good terms) in equal shares. If there is an office or house, an equal share will go to the mother. Shares of companies are also divided equally. It is difficult to get all the heirs on a common meeting ground to write to the companies to transfer the shares to the names of the respective heirs. But all these problems can be obviated if a will is left behind.

• According to the law of inheritance and succession, if a Hindu male passes away,
  • Hindu female shares equally with the male i.e. a son and daughter will succeed with equal shares.
  • The wife as well as the mother also gets an equal share.
  • ThThere is nothing to prevent a Hindu male from bequeathing his entire property to a stranger if he so desires.
• Muslim male cannot will away more than 1/3 of the estate i.e. 2/3rdof the property must be divided among the family members in the shares laid down in the Shariat Act, 1937.
  • A Muslim wife cannot be dispossessed. li>
  • Even though she has to share with other wives if there is more than one wife.
  • The widow gets a definite share.
  • Mohammedan Law gives the male heirs, the sons, twice the share of the daughters.

THE LAW APPLICABLE TO WILLS

InIndia has a well developed system of succession laws that governs a person's property after his death. The IndianSuccession Act 1925 applies expressly to wills and codicils made by Hindus, Buddhists, Sikhs, Jains, Parsis and Christians but not to Mohammedans as they are largely covered by Muslim Personal Law.

• The Indian Succession Act, 1925
• Hindu Personal Laws
• Muslim Personal Laws
• The Indian Registration Act, 1908

The Indian Succession Act, 1925, a will has been defined as follows:
"A Will is the legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death."
Important postulates of a will are as follows:

• Legal declaration: A Will is a legal declaration. The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it.. It must be signed and attested, as required by law.
• Disposition of property: The declaration should relate to disposition of the property of the person making the Will.
• Death of the Testator: A will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator. It has no effect during the lifetime of the testator. The testator can change his will, at any time prior to his death, in any manner he deems fit.
• Revocability: The essence of every Will is that it is revocable during the lifetime of the testator.

PERSONS COMPETENT TO MAKE A WILL

• According to Section 59 of the Indian Succession Act,
  • Any person of sound mind
  • Who has reached the age of majority
• The following persons cannot make a will:
  • Lunatics, insane persons.
  • Minors i.e. below 18 years of age. In case a guardian is appointed to a minor, ;such minor reaches age of maturity only at the age of 21 years.

POINTS TO REMEMBER

• Persons who are deaf or dumb or blind are not, thereby, incapacitated in making a will, if they are able to know what they do by it.
• A person, who is ordinarily insane, may make a will during an interval while he is of sound mind.
• No person can make a will whilst he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, so that he does not know what he is doing.

EXECUTOR OF A WILL

An executor is the person appointed ordinarily by the testator's by his will or codicil

• ToTo administer testator's property and
• To carry into effect the provision of the will

CODICIL

• An instrument made in relation to a Will,
• Explaining, altering or adding to its dispositions,
• It shall be deemed to form part of the Will.
• The Testator wants to change the names of the Executors by adding some other names, in that case this could be done by making a Codicil in addition to the Will, as there may not be other changes required to be made in the main text of the Will.
• It may be that the Testator wants to change certain bequests by adding to the names of the legatees or subtracting some of them. It may be some Beneficiaries or Executor may be dead and the names are required to be removed. All these can be done by making a Codicil.
• The Codicil must be reduced to writing.
• It must be signed by the Testator and attested by two Witnesses.

LETTER OF ADMINISTRATION

• A certificate granted by the competent court to an administrator
• Where there exists a WILL
  • authorizing him to administer the estate of the deceased in accordance with the WILL.
  • where a WILL does not name any executor,
    • an application can be filed in the court for grant of Letter of Administration for the property.
• And in accordance with law where the deceased has died intestate.

A PROBATE

• Probate means
  • the copy of the will is given to the executor
  • together with a certificate granted under the seal of the court
  • and signed, by one of the registrars, certifying that the will has been proved
• The application for probate shall be made by petition to the court of competent jurisdiction.
• A copy of the last will and testament of the deceased should be annexed to the petition.
• The copy of the will and the copy of the grant of administration of the testator's estate together, form the probate.
• It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator.
• A probate is obtained to authenticate the validity of the will.
• The probate is still the only proper evidence of the executor's appointment.
• The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator.
• Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased.

A SUCCESSION CERTIFICATE

• Succession Certificate can be granted by the court to realize the debts and securities of the deceased and to give valid discharge.
• A succession certificate is a certificate when granted to the person empowers the person
  • to receive interest or dividends
  • negotiate the transfer or any of them
  • with respect to the securities of a deceased person
    P.S: Securities means any bond, stock, debenture or security
• He is required to dispose of the amount so realised in accordance with the rights of the person entitled thereto.
• The person requiring the Succession Certificate may
  • File an application in the court, where the properties of your deceased relative are situated or where he / she normally resided.
    • Depending on the value of the estate of the deceased, the matter shall go to the type of court, which can conduct cases for that value [This is known as "pecuniary jurisdiction" of the court].
    • With the names of all other heirs of your late relative as the respondents in the matter.
  • Who may after notice to all concerned and a newspaper notice is also ;issued apart from mandatory notice to the respondents.
  • Upon the expiry of the time period (normally 1 and a half months) from the date of publication of the notice after the respondents have given their no objection.
  • The court passes the orders for issuance of the Succession Certificate to the person/s making such an application.
• Judicial Stamp papers of sufficient amount (as per the prescribed court fees structure) to be submitted in the court, where after the Certificate is typed by the court staff, duly signed and sealed and delivered.
• The certificate takes about 3-4 months from date of filing to receive your certificate.

WILL & NOMINATION

• A nomination is not a will.
• The nominee merely acts as the trustee. In some instances, the nominee and the beneficiary of the will is the same person.
• At all times, the provisions of the will prevail over the nomination.
• It is advisable to have the same person as the nominee and the beneficiary of the will, so as to prevent future disputes.

A nomination, in order to be effective, need not be executed as a will but must be in accordance with the formalities required by the particular provision applicable.

ATTESTATION OF A WILL

• The testator shall sign or shall affix his mark to the will, or some other person shall sign it in his presence and by his direction.
• The signature or mark of the testator, or the signature of the person signing shall appear clearly and should be legible. It should appear in the manner that is appropriate and makes the will legal.
• The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen other person sign the will, in the presence and by the direction of the testator, or has received from the testator.
• Personal acknowledgement of his signature or mark, or of the signature of such other person. Each of the witnesses shall sign the will in the presence of the testator.
• Each of the witnesses shall sign the will in the presence of the testator, but it should not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

EXECUTION OF A WILL

• On the death of the testator, an executor of the will or an heir of the deceased testator can apply for probate.
• The court will ask the other heirs of the deceased if they have any objections to the will.
• If there are no objections, the court will grant probate.
• A probate is a copy of a will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a will.
• In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent.
• This has to be displayed prominently in the court.
• Thereafter, if no objection is received, the probate will be granted.
• It is only after this that the will comes into effect.

PROCEDURE FOR REGISTRATION :

• A Will is to be registered with the registrar/sub-registrar with a nominal registration fee.
• The testator must be personally present at the registrar's office along with witnesses.
• Signature of registrar : The endorsement of the register is sufficient to prove the execution of the will, if at all the testators of the will are dead and if the testator affirms the contents of the will and put his thumb impression on the endorsement in the presence of the sub-registrar, the sub-registrar could also be considered to be an attesting witness.
• Stamping of will : A will or codicil is not requires to be stamped at all.

FORMS & FORMALITIES TO MAKE A WILL

• Form of a Will
  • There is no prescribed form of a Will.
  • In order for it to be effective,
    • It needs to be properly signed and attested.
    • The Will must be initialed by the testator at the end of every page and next to any correction and alteration.
• Language of a Will
  • A Will can be written in any language.
  • No technical words need to be used in a Will.
  • The words used should be clear and unambiguous so that the intention of the testator is reflected in his Will.
• Stamp Duty
  • No stamp duty is required to be paid for executing a Will or a codicil.
  • A Will need not be made on stamp paper.
• Attestation
  • A Will must be attested by two witnesses who must witness the testator executing the Will.
  • The witnesses should sign in the presence of each other and in the presence of the testator.
  • However, according to Hindu Law, a witness can be a legatee. Under Parsi and Christian law, a witness cannot be an executor or legatee.
  • A Muslim is not required to have his Will attested if it is in writing.
• Registration:
  • Under section 18 of the Registration Act the registration of a will is not compulsory.
  • It is a strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity.
  • A Will must be proved as duly and validly executed, as required by theIndian Succession Act.
  • Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen.
  • It shall be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate.