Businesses don’t just thrive on the firm cornerstone of resources and funds, they also work by abiding by a set of laws and regulations. Whether you are a small business or an established industry shark, there’s no denying you have to follow an extensive array of laws set by the authorities. Therefore, working with business lawyers is imperative to ensure your business remains compliant with the set of laws, such as preparing taxes, property purchases, contract drafting, and more. Still, wondering how the best corporate law firms can help you? Here’s a guide to back you up!
Businesses don’t just need the aid of professional lawyers when they become industry giants; they need a lawyer at the very beginning to form a foundational legal structure for their enterprise operations. Whether it’s a sole proprietorship, partnership, corporation, or LLC, each structure has distinct legal implications impacting liability, taxes, and management. A business lawyer can provide invaluable advice in choosing the structure that aligns with your goals while minimizing potential legal risks.
2. Contract Drafting and Review
If you think contracts are mere documents, you are gravely mistaken. Contracts serve as the bedrock of business agreements, and errors or oversights in contracts can lead to costly disputes or legal entanglements down the line. A business lawyer proficient in contract law can ensure that agreements are meticulously drafted, protecting your interests and minimizing the scope for ambiguity or misunderstanding.
3. Employment Law and Disputes
Businesses lose thousands of dollars annually on employment lawsuits, but you can avoid them with the help of professional lawyers. Employment law is an extensive domain encompassing hiring practices, workplace safety, discrimination, and termination procedures. Business lawyers play an indispensable part in navigating these regulations, ensuring compliance, and providing guidance during disputes or litigation arising from employment issues.
4. Intellectual Property Protection
Safeguarding intellectual property (IP) rights is imperative for businesses innovating in today’s competitive market. Whether it’s patents, trademarks, copyrights, or trade secrets, a business lawyer can aid in securing and enforcing these rights, shielding your innovations from infringement and unauthorized use.
5. Business Expansion and Transactions
As businesses expand or engage in mergers, acquisitions, or partnerships, legal complexities escalate. A business lawyer adept in corporate law can facilitate these transitions, conducting due diligence, negotiating deals, and ensuring legal compliance throughout the process, mitigating potential risks.
6. Regulatory Compliance and Governance
Navigating the myriad of regulations imposed by federal, state, and local authorities is a formidable challenge for businesses. A business lawyer proficient in regulatory compliance can provide guidance, ensuring adherence to laws pertinent to your industry, and averting penalties and legal repercussions.
Conclusion
What most businesses do is they hire a business lawyer when it’s too late. However, you can always ensure to work with a professional legal counsel from the very beginning. From mergers and acquisitions to lawsuits and legal violations, the best corporate law firms can provide the required advice and legal guidance you need to avoid breaking the law in the first place.
NCLT law pertains to the legal framework governing corporate disputes, insolvency, and matters related to companies in India. The National Company Law Tribunal (NCLT) was established under the Companies Act, 2013, as a quasi-judicial body, handling cases involving company law, mergers, restructuring, and insolvency resolutions. NCLT law encompasses the Insolvency and Bankruptcy Code (IBC), providing a structured process for resolving insolvency issues. NCLT lawyers can help commoners navigate this intricate legal domain, offer legal counsel, and represent them in tribunal proceedings for resolving cases within the ambit of NCLT’s jurisdiction.
Wondering how the best advocate in Mumbai can help you with NCLT cases? Here’s a guide for you!
Navigating Corporate Insolvency and Bankruptcy Code (IBC):
NCLT lawyers in Mumbai are adept at handling cases falling under the Insolvency and Bankruptcy Code. They assist clients in initiating insolvency proceedings, representing them during hearings, and ensuring compliance with the legal framework, their proficiency in understanding the intricate provisions of the IBC is a cornerstone of their responsibilities.
Filing and Defending Cases:
These legal experts file petitions and defend their clients in matters related to corporate disputes, mergers, amalgamations, and winding-up proceedings. Their responsibilities extend to drafting petitions, collecting evidence, and presenting compelling arguments in the tribunal.
Advising on Corporate Governance:
NCLT lawyers provide counsel on corporate governance issues, guiding companies to comply with regulations and best practices. Their role involves advising boards, management, and stakeholders on legal strategies to ensure compliance with NCLT regulations and prevent potential disputes.
Representation in Tribunal Proceedings:
A significant responsibility of NCLT lawyers in Mumbai is representing clients during tribunal proceedings. This involves presenting cases effectively, cross-examining witnesses, and ensuring that the client’s interests are protected throughout the legal process.
Facilitating Settlements and Negotiations:
These lawyers work towards settling disputes through negotiation or mediation, aiming to achieve amicable resolutions outside the courtroom. They leverage their negotiation skills to reach settlements that align with their client’s best interests while avoiding prolonged litigation.
Due Diligence and Compliance:
Ensuring compliance with regulatory requirements and conducting due diligence in corporate matters form an integral part of an NCLT lawyer’s responsibilities. Professional NCLT lawyers also examine legal documents, contracts, and agreements to safeguard their clients’ interests.
Appeals and Higher Court Proceedings:
NCLT lawyers also handle appeals and higher court proceedings arising from NCLT orders. Their responsibilities encompass preparing and presenting appeals before the National Company Law Appellate Tribunal (NCLAT) or higher courts to seek redressal for their clients. You can reach out to them for cases concerning appeals and higher court proceedings if you want someone to appeal for you in the higher courts.
Conclusion
Amidst the high-octane business landscape of Mumbai, NCLT lawyers can significantly help to ensure compliance, resolve corporate disputes, and uphold the sanctity of legal processes. Just ensure to work with the best advocates in Mumbai with a profound track record in handling NCLT cases, and you can rise beyond any case that falls under the NCLT domain without any setbacks.
As per Section 6 of the Negotiable Instruments Act 1881, “A cheque is a bill of exchange drawn on specific banker and not expressed to be payable otherwise than on demand and it includes electronic image of truncated cheque and a cheque in electronic from.”
What is dishonour of cheque?
A cheque is said to be honoured if the banks give the amount to the payee. While, if the bank refuses to pay the amount to the payee, the cheque is said to be dishonoured in banking law. In other words, dishonour of cheque in banking law is a condition in which the bank refuses to pay the amount of cheque to the payee.
Reasons for dishonour of cheque in banking law
There are numerous reasons when the cheques are dishonoured or why cheques are refused, returned, bounced or dishonoured. Few of the reasons have been mentioned below :
1.When the cheque is overwritten.
2.When the signature is absent or the signature in the cheque does not match with the specimen signature kept by the bank.
3.When the name of the payee is absent or not clearly written.
4.When the amount written in words and figures does not match with each other.
5.When the account number is not mentioned clearly or is altogether absent.
6.When the drawer orders the bank to stop payment on the cheque.
7.When the court of law has given an order to the bank to stop payment on the cheque.
8.When the drawer has closed the account before presenting the cheque.
9.When the fund in the bank account is insufficient to meet the payment of the cheque.
10.When the bank receives the information regarding the death or lunacy or insolvency of the drawer.
11.When any alteration made on the cheque is not proved by the drawer by giving his/her signature.
12.When the date is not mentioned or written incorrectly or the date mentioned is of three months before.
LEGAL RECOURSE
In banking law, when a cheque is dishonoured, the drawee bank immediately issues a ‘Cheque Return Memo’ to the banker of the payee mentioning the reasons for the dishonour of cheque.
The payee’s banker then gives the dishonoured cheque after mentioning the reasons for the dishonour of the cheque along with the memo to the payee. The holder or payee can resubmit the cheque within three months of the date on it, if he believes it will be honoured the second time.
However, if the cheque issuer fails to make a payment, then the payee has the right to prosecute the drawer legally.
The payee may legally sue the defaulter/drawer for dishonour of cheque only if the amount mentioned in the cheque is towards discharge of a debt or any other liability of the defaulter towards payee. However, if the cheque was issued as a gift, towards lending a loan or for unlawful purposes, then the drawer cannot be prosecuted in such cases.
In banking law, the reasons for dishonour of cheque along with the punishment are treated under the Negotiable Instruments Act,1881.
According to Section 138 of the said Act, the dishonour of cheque in banking law is a criminal offence and is punishable by imprisonment up to two years or with monetary penalty or with both.
If payee decides to proceed legally, then the drawer should be given a chance of repaying the cheque amount immediately. Such a chance has to be given only in the form of notice in writing.
The payee has to send the notice to the drawer with 30 days from the date of receiving “Cheque Return Memo” from the bank. The notice should mention that the cheque amount has to be paid to the payee within 15 days from the date of receipt of the notice by the drawer.
If the cheque issuer fails to make a fresh payment within 30 days of receiving the notice, the payee has the right to file a criminal complaint under Section 138 of the Negotiable Instruments Act.
However, the complaint should be registered in a magistrate’s court within a month of the expiry of the notice period. It is essential in this case to consult an advocate who is well versed and experienced in this area of practice to proceed further in the specified matter.
Legally, certain conditions have to be fulfilled in order to use the provisions of Section 138.The cheque should have been drawn by the drawer on an account maintained by him.
The cheque should have been returned or dishonoured because of insufficient funds in the drawer’s account. The cheque is issued towards discharge of a debt or legal liability. After receiving the notice, if the drawer doesn’t make the payment within 15 days from the day of receiving the notice, then he commits an offence punishable under this section.
Though the provision contained in Sec.143 of the N. I. Act provides that cases u/s.138 are to be tried in summary way, they should be tried as a regular summons cases. If it appears to the Magistrate that nature of case is such that sentence of imprisonment for a term exceeding one year may have to be passed, or that it is for any other reasons undesirable to try the case summarily, Magistrate shall after hearing the parties record and order to that effect and try the case as a regular summons case.
The Ministry of Finance vide its Statement of Reason dated 08.06.2020 has announced various steps to provide relief from the economic stress caused due to the Covid-19 pandemic. One such proposal was the amendment of 19 acts to decriminalize multiple minor economic offences, including the offence of dishonour of cheque case under Section 138 of the Negotiable Instruments Act, 1881.
SECTION 138 of NEGOTIABLE INSTRUMENTS ACT 1881
This Section deals with“Penalties in Case of Dishonour of Certain Cheques for Insufficiency of Funds in the Accounts”
This Section was enacted and incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned.
The purpose of any proceeding, initiated under this Section is that the cheques should not be used by people as a tool of dishonesty. When a cheque is issued by a person, it must be honoured. In the cheque dishonoured case, the person is given an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay, he must face the criminal trial and consequences along with the other cheque dishonour charges.
Thus, this Section casts a criminal liability punishable with imprisonment which may extend to 2 years or with fine which may extend to twice the amount of the cheque or both. The cheque must be issued to discharge a debt or liability as a whole or in part which is legally enforceable and is dishonoured by the bank on presentation. The intent of the legislature to insert the punitive provisions were referred to by the Hon’ble Supreme Court of India in the matter of Modi Cements Ltd. Vs. K.K. Nandi3 wherein the court observed that the prime reason for insertion of such provision is to prevent unscrupulous use of cheques which results in dishonour of cheque case and to ensure credibility of the businesses.
Decriminalization of minor offences is one of the thrust areas of the Government. Decriminalization is also considered to be a significant step in the Government of India’s objective of achieving ‘SabkaSaath, SabkaVikas and SabkaVishwas’.
Reasons for Decriminalising the Dishonour of Cheques
In Meters and Instruments Private Limited and Another vs. Kanchan Mehta, the Court has observed the nature of offence under Section 138 which primarily relates to a civil wrong, and that while criminalising of dishonour of cheques cases has taken place in the year 1988 taking into account the magnitude of economic transactions today.Decriminalisation of dishonour of cheque charges of a small amount may also be considered, leaving it to be dealt with under civil jurisdiction.
1.Currently, the drawer of the negotiable instrument like cheque still has a fear of facing criminal punishment apart from the penalty of repayment of twice the amount. The proposed change in law will remove such fear. The instrument of cheque will lose its good faith and trust in the market, thereby lowering the number of transactions through cheques.
2. To find a balance so that malafide intent is punished while other less serious offences are compounded.
3. Actions taken for decriminalization of minor offences are expected to go a long way in improving ease of doing business and helping unclog the court system and prisons.
4.Criminalizing procedural lapses and minor non-compliances increases burden on businesses and it is essential that one should re-look at provisions which are merely procedural in nature and which do not impact national security or public interest at large.
5.Another cheque dishonour charge includes the offence under Section 138, from the criminality point of view, which has been a petty offence due to its nature. Any such criminal complaint, if the aggrieved person requires, can be filed under Section 420 (Cheating) of the Indian Penal Code, 1860.
6.The number of cases that are pending in several courts in India under Section 138 has seriously cast a shadow on the credibility of our trade, commerce and business. Due to the huge backlog of cheque bouncing cases, the trial of other important and rather more serious cases are sidelined, resulting in the litigants and the public losing faith in the judicial system.
Further, its criminality has also been substantially decreased by inserting Section 147 in the Negotiable Instruments Act in 2002, making the offence punishable under Section 138 of the Act compoundable, which means that the parties on reaching a settlement can mutual agree and drop the cheque dishonour charges against the accused.
7. Decriminalising of section 138 NI Act will not only remove the assurance/ deterrent effect given at present but also effect the reliance placed on banking services creating doubt on the creditability of the negotiable instrument, thereby causing a shift towards cash transaction, which in turn would take us a step back from our Prime Minister’s vision of cashless economy.In another cheque dishonour case, the Supreme Court, recently, vide order dated 05.03.2020, in Makwana Mangaldas Tulsidas v. State of Gujarat & Ors opined on decriminalization of dishonour of cheques of smaller amounts and suggested various ways to deal with the over flooded situation of cheque dishonour cases pending for adjudication across the country.
Cheques have always been the most convenient and appreciated mode of payment in all kinds of commercial transactions. Businesses would come to a halt in case these cheques would not exist or be recognized as a bonafide method of payment in business transactions. Similarly, in cases where a cheque which has been accepted in good faith, gets bounced due to the underlying reasons for dishonour of cheque would again make the business suffer, hence losing its authenticity and trust.
WHY DOES A CHEQUE DISHONOUR OR CHEQUE BOUNCE OCCURS ?
When a Drawer is liable to pay some amount to the Payee , he draws a Cheque in the name of the Payee,who is also called the Holder of the Cheque and then deposits this Cheque in the bank where he holds an account or otherwise.
The Cheque shall be deposited on or after the date specified on the Cheque but shall not be deposited later than 30 days from the date mentioned on the Cheque, as it becomes invalid. After depositing the Cheque in the account, if the Drawee finds it not possible to pay off the amount specified in the Cheque, it sends the ‘Cheque Return Memo’ to the Payee’s banker. Payee’s banker then forwards such ‘Cheque Return Memo’ to the Payee informing him about the dishonoured cheque.
Thus, an incapacity of the Drawer to pay off the Cheque amount to the Payee on the due date or when submitted/deposited, is called as dishonour of Cheque and that cheque is called dishonoured cheque.Reasons for such dishonour of cheque involves insufficient funds, mismatched signature, wrong date or no date mentioned on the cheque, damaged cheque, overwriting etc.
Whereas, a cheque bounce is usually a term used to describe the unsuccessful processing of a dispensed cheque. One of the main reason why a cheque bounces is insufficient funds in the issuer’s bank account. When there are inadequate or no funds in the account, the cheque that has been issued is returned.
If the Drawee Bank finds out that it is not possible to pay off the Cheque amount to the Payee due to any reason, the Drawee Bank immediately issues a ‘Cheque Return Memo’ to the banker of the Payee mentioning the reason for non-payment. The Payee’s banker then gives the dishonoured cheque and the memo to the Payee.
REASONS FOR DISHONOUR OF CHEQUE OR CHEQUE BOUNCE
1.No scribbling, overwriting, correction etc. is permitted on the cheque and if a cheque is found that way, it will be Dishonoured or bounced.
2.When Signature is missing, or the signature in the cheque does not match the with bank’s sample signature.
3.In case the name of the payee is not mentioned on the cheque or not visible clearly.
4.When the amount mentioned in words and figures does not match with each other.
5.In case the account number is not written clearly or missed.
6.If Court orders drawee bank to stop payment on the provided cheque,
7.In case the drawer has closed the account before submitting the cheque by the payee.
8.In case the fund in the drawer bank account is insufficient to complete the payment of the cheque.
9.In case the drawee bank receives the information regarding the death or lunacy or insolvency of the drawer.
10.The drawer does not approve any alteration made on the cheque by giving his/her signature.
THE BASIC DIFFERENCE BETWEEN THEM
These words sound very alike but they mean different. The concept of cheque dishonoured & cheque bounce is nearly same but only difference is that cheque is dishonoured due to distinctive signatures, wrong date, the amount mentioned in the cheque is either wrong or not mentioned whereas a cheque is bounced only due to insufficient funds in drawer’ account.
There are several types of property dispute. Most of the disputes pertain to the title of the immovable property. Saying that ‘a person has a good title over the property’, implies that such a person has a right to enjoy the rights or interests in the property, possession, use, income by way of rent, etc. Dispute pertaining to a property, often arise through claims from legal heirs, co-owners, disputes over easement rights, wrong representation by the seller, improper description of the property in the title deed, etc. Hence the need for the property dispute lawyers have been increasing and the need for the best lawyer for property disputes are arising for their clients to get the right title of their property.
As much as the property is deemed to be a valuable asset that everyone is seen aspiring and vying for, it’s also often the root cause of conflicting circumstances that arise amongst family members.
People are seen battling with their kith and kin over even petty, not to mention far more crucial issues that arise as a result of faulty or flawed inheritance or marriage falling apart.
Also, before dealing in any property , reading articles from the property dispute lawyers may help you save your headache from all the conflicts that arise later.
One of the most cherished assets that majority of people aspire for is property and it takes a lot of effort besides investment of resources to acquire a piece of real estate. No matter how careful an individual may be, there may be circumstances which force them to search for property dispute lawyers.
Below are the four essential tips from the best property lawyers to avoid family conflicts
1.Selection of the Executor of the Will
The vast majority of litigations arise between kith and kin or relations owing to inheritance. Experts are of the opinion that in most cases it’s not as much about the will that is the root cause of the problem, rather, it’s more about the way of execution of the will that may have led to the conflict in the first place. The vast majority of property owners commit the flaw or mistake of handpicking and designating an executor solely based on the fact that the person may be a prospective inheritor without any prior assessment of whether or not the chosen person fulfills the eligibility criteria of an executor of the will. While designating a designated executor, ideally, a neutral person who does not have an ax to grind from the will as such or can stake their claim; essentially a person who would be unbiased or neutral. An honest, diligent and hardworking person with integrity who would execute his or her assigned duties and responsibilities efficiently and be able to instill confidence amongst inheritors.
2.Selection of the Co-owner
Purchasing property jointly with relatives is common, and the reason for such investments are usually because of a tax rebate, e.g., less tax for female buyers. However, people must proceed with extreme caution while deciding to buy or own property jointly with any family member, especially for NRIs, because mostly they stay abroad and possession remains with the other co-owner who generally takes care of the share of the property on his behalf.
3. A No-contest Clause to be included in the Will
As already mentioned, an inheritance that isn’t well chalked-out is, in fact, the root cause of the vast majority of once closely-knit families disintegrating; siblings in particular. A well-documented will with a detailed explanation of the asset distribution amongst their siblings or next-of-kin along with the inclusion of a no-contest clause as suggested by some property dispute lawyers. The Best property lawyers ought to advise their clients properly regarding the relevant laws of the jurisdiction of their residence.
4.Avoiding Disputes Related to Divorce Through a Prenuptial Agreement
As a preventive measure, a prenuptial agreement prior to the marriage being solemnized is a step in the right direction towards avoiding problems related to asset distribution. There could be an agreement amongst parties as to the distribution of valuable assets owned singly or jointly by them should they get divorced. A prenuptial agreement (“prenup”) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.
A prenuptial agreement (“prenup” for short) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns (as well as any debts) and specifies what each person’s property rights will be after the marriage.
Issues requiring the engagement of property dispute lawyer can be stressful and taxing and therefore individuals must take all necessary precautions before buying or renting a piece of real estate. Engaging a legal advisor before moving ahead with such a transaction will always be helpful in avoiding any hassles in the future.
It has been seen that with a lot of emergence of digital and information technologies towards the current decade as the defining paradigms of new communication has bought along a whole new set of challenges to legal regime.
The very instance the Intellectual Property laws were first drafted in 1623 , computers did not exist and hence it was not foreseen that it would become necessary to protect information stored in it .
With the advent of e-commerce and e-business, it has become important for business to protect their intellectual property rights online.
With such an advancement comes along various loopholes and to settle such loopholes comes the need of property advocate.
COPYRIGHT ISSUES IN CYBER SPACE
The increase in the utilization of the Internet, has placed problems in copyright protection for digital transmission that have become worse. It is a paradoxical situation and if India does not provide for legal protection for technological measures, the Internet may create havoc in enforcement of copyright protection.
The enactment of the Information Technology Act 2000 addressed problems created by “Cyberspace” but still there are certain issues yet to be faced relating to Intellectual Property.
Copyright is violated when an unauthorised individual does something that breaches the copyright proprietor’s rights
1.Linking allows a website user to visit another website without leaving that particular website. It may infringe the rights of the owner of the page as linked-to sites can lose income as their revenues are often tied to the number of viewers who visit their home page.
This leads to copyright infringement as one site contains links to copyrighted materials contained in another site against the knowledge or will of the owner.
There are three types of copyright violations:
1.Direct: When there has been a direct link between the infringer’s infringement of the Copyright Act’s privileges and the infringer’s infringement of the Copyright Act’s rights.
2.Contributory: When internet providers, web administrators, as well as other operators, could be held accountable for helping others in copyright infringement, the most important component which must be included is that the third party.
3.Vicarious: When an infringement occurs via an internet website or a provider, and the violation benefits the internet website or even the provider financially, such third parties towards the violation are held accountable under the copyright act.
Such acts create a great disadvantage on the part of the user , hence property advocates are thus needy.
TRADEMARK ISSUES IN CYBER SPACE
A trademark is described as a mark that can be displayed in a graphical style so that the goods or services incorporated into that mark are easily recognisable and distinct in the perspective of the individual looking at that mark.
The domain name holder has no legal right, claim or real power over the official title of the trademark it is bearing.
1.Cybersquatting :It is the registering, selling or using a domain name with the intent of profiting from the goodwill of someone else’s trademark.
2.Reverse domain name hijacking: Under the fear of high litigation costs and legal proceedings, the domain owner may relinquish control of the domain towards the trademark owner.
3.Meta tags : These tags are being exploited to create fake rankings and misuse trademark and domain names associated with owner’s trademarks online.
INTERNATIONAL LEGAL REGIME RELATING TO IPR’s
The legal regime that governs the intellectual property and the protection of the same which acts for the base of any trade.
1.The Paris Convention on the Protection of Industrial Property :This convention was concluded in 1883 being the first international instrument to cover patents on industrial innovations.
Marriage is a social legal contract between a spouse who expects to live with each other for the rest of their lifetime. A ceremony is arranged to establish that they have taken a decision to live together. It is believed that those ceremonies will increase their bond. In our life everything doesn’t happen as we planned. There are couples who would like to end their marriages. They may have physical or mental problems in which leads them to take this decision.
These decisions may be mutual or from one side alone. For such terminations, they approach court expecting a legal dissolution of their marriage. We call that as Divorce. There are two types of divorce mutual divorce and contested divorce. But court can’t grant divorce for every person who claims for it. There is a procedure for everything. We have these procedures because marriage is not only about two people.
Marriage involves two families and children of the spouse. We should consider the future of the children, family and spouse. As we all know every religion has their own rituals, events and believes for marriages, they also have their own methods and rules for divorce too. Our Indian courts strive hard to unite the spouse for regulating our society. But there may be circumstances where a person experiences harassment from their own partner.
In this situation, we can’t expect the victim to live with his/ her spouse for their life. Our courts are very keen while deciding to whom divorce should be given. There are few Acts that governs marriage and divorce in India. They are the Family Courts Act, 1984, Indian Divorce Act, 1869, Hindu Marriage Act, 1955, etc.
But what are the causes of divorce? What are the significant of divorce? What maintenance the partner will be receiving? Who will get the custody of the child? How effective is the counselling process prescribed by the court? As we are also somehow connected to this institution called marriage, every citizen of India should be aware of it. Our paper will throw lights on the basics of Indian Divorce laws that every person should know.
Divorce: Personal Law Perspective
Religion plays a major role in framing personal laws. Even though we are governed by our own personal laws, these laws get their source from their own religion. It is important to understand the concept of divorce in early days with respect to a religious phenomenon. In our country, 3 religion plays a major role namely, Hinduism, Christianity and Islam.
Hinduism: According to Hinduism, marriage is a not a contract, it is a samskara or rite of passage, Thus, there is no space for revoking marriage in Hindu culture. When a Hindu couple performs sapthapthi (seven steps around the fire) they are tied by a strong bond. From Hindu mythology it can be observed that there is no concept of divorce in early Hindu culture but there are some domestic misunderstandings which lead to judicial separation, Lord Sita was deserted by Lord Rama when she is pregnant, here we can observe that a Judicial separation was considered as the solution for marital problems in ancient Hindu culture.
Divorce, however, is not seen between God and his consort. In Vishnu temples, Lakshmi shrines are always separate from Vishnu’s. In Dwarka, Rukmini stands separate from Krishna. In Pandharpur, Satyabhama stands in a shrine separate from Krishna. These examples clearly say that there is no space for divorce in ancient Hindu tradition and judicial separation has its own history in Hindu culture is so far concerned.
Christianity: The concept of divorce can be traced in the Bible but it was interpreted in two different ways by the two different branches of Christianity. The Roman Catholic Church never accepts the concept of divorce, according to them, marriage is a strong bond which can’t be broken. A marriage can only end when one of the partners dies. A civil divorce may be granted to a Roman Catholic couple but they can’t remarry in Roman Catholic Church Since their previous marriage is still exist in the eyes of God. On the other hand, the Church of England permits divorce for a couple when the marriage is truly broken, they believe in the concept of divorce. According to them, marriage is a true bond and it can be cancelled when it can be repaired. In general, Christians believe in marriage and they avoid divorces, even when they face marital difficulties, they try to solve it as they promise before God to stay together.
Islam: Islam religion gave a different view on divorce, Divorce is granted when the marital bond between the couple is completely broken, which can’t be repaired. The Quran establishes two further means to avoid hasty divorces.
For a menstruating woman, Al-Baqarah 2:228 prescribes the waiting (Iddah) period before the divorce is finalized, as three-monthly periods. Similarly, for a non-menstruating woman, At-Talaq 65:4 prescribes the waiting period. From this it can be observed that the religion gives plenty of time to reconcile their marital bond, divorce is only granted when there is no chance for reconcile.
Some of the commonly known form of divorce in Islam religions are:
By Husband- Talaq-Ul-Sunnat, Talaq-Ul-Biddat, Ila and Zihar
By Wife- Talaq-i-Tafweez, Lian and Khula
My Mutual Agreement- Mubarat
On the other hand, in the early days, the Holly Quran provides many benefits to Muslim men, with some restrictions. Particularly with respect to the concept of divorce, Men have more powers than Women, Women’s consent is not attracted in many Divorce cases. But latter Gender Equality was up held by the Indian Judicial System in the famous case Shayara Bano, they struck down the concept of Triple Talaq which means Instant divorce.
Causes and Needs of Divorce
A statistic says that one out of a hundred marriages in India end in divorce. Though it is comparatively low than the rest of the countries, it’s quite a large number. Now let’s see the causes of these divorces.
According to Section 10 of Indian Divorce Act, 1869 and Section 13(1)(i) of The Hindu Marriage Act, 1955, husband or wife could petition for divorce if they found that their partner has involved in adultery. This is required because the person affected may no longer get any sexual satisfaction, love and affection from the partner who went with another person for the same needs. But there are no provisions regarding adultery in Muslim laws.
In the case of Revathi vs Union of India, the court held that neither the husband nor the wife could not prosecute the other for the purpose of adultery. Recently in the famous case of Joseph Shine vs Union of India, adultery was decriminalized as they thought that gender equality is important in adultery too.
Maintenance Rights of Divorcee
Maintenance is the concept which comes into the play when a couple approaches the court of justices for divorce. Since Maintenance has it is own link with divorce, Maintenance is also different in all the three different religions. Maintenance is a concept which allows one person to get financial support from his/ her spouse even, after divorce. Factors like the monthly income of husband and wife, the financial status of husband and wife are considered by the court before granting Maintenance. Generally, the court keeps an eye on the maintenances of the children also while granting the maintenances.
The husband and wife have to provide financial support to the minor child, even after divorce. It can’t be generalized that wife is the party who gets the maintenance always, there are some legal provisions which allows a man to get maintenance from his wife after divorce. Section 24 of Hindu marriage act says that maintenance pendente lite and expenses of proceedings can be granted in favour of both husband and wife and Section 25 of Hindu Marriage act allow the court to grant lifetime maintenance to both Husband and wife whose financial status is low. Delhi High court made an observation in a case that when the husband has no self-income to run his life can claim maintenance from his wife after divorce.
Bombay High court made different interpretation which gives more clarity section 24 of Hindu Marriage Act, it was held in a case that her husband is entitled to get maintenance under Section 24 of the Act. In a case, it was held that since the wife is in employment, the husband cannot make himself wholly depend on her income through a device under Section 24 of the Act. In the absence of any handicap or impediment to earning, to grant maintenance to such able-bodied person equipped with skill would promote idleness, which is opposed to the spirit of Section 24 of the Act.
Maintenance in case of women is different Women has a special right called Right to Streedhana Streedhana is the property gained by a woman at the time of marriage, it is different from dowry. Women have the full right over these properties even after the divorce.
Maintenance under Hindu Law:
A Hindu couple who got married under the Hindu Marriage Act can get maintenance through the Hindu Adoption and Maintenance Act. The Court is the final authority which can solve the disputes in case of deciding the maintenance amount.
Maintenance under Muslim Law:
According to the Muslim belief, Men has to maintain his wife and family. The term Maintenance under Muslim law is called NAFAQA and it involves lodging, food and sustenance. They are governed by Muslim women (Protection of Rights on Divorce) Act, 1986. A wife can claim a reasonable fair amount from her ex-husband within the prescribed IDDAT period, and Muslim men have to give the promised Dower or Meher.
If the wife is pregnant claim can be made for an amount for at least 2 years from the date of birth of a child. If they had a child in wife’s custody then, the wife can claim maintenance for the child till she remarries or until the child is dependent. The marriage contract may also stipulate the payment of special allowances by the husband, and in presence of these, it becomes the obligation of the husband to pay these to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc.
Maintenance under Christian Law:
Indian Divorce Act comes into play with respect to claim made by Christian couples, according to the Act, the amount of maintenance can’t be more than one- fifth of husband’s income. Maintenance will not be provided if women remarry or found to be chaste.
Overall, it is seen and observed that rights of a woman in divorce in India has been duly protected under all the personal law. Besides the personal law, the rights of a woman in divorce in India is also protected by secular law which will protect a woman irrespective of her religious belief. An instance for this is Protection of Women from Domestic Violence Act, 2005 and Section 125 of Code of Criminal Procedure.
Custody Of Children After Divorce
The termination of the marriage contract through Divorce will never end the bond with their children. The saddest truth is that the real sufferer is the child who is going loose one of their parents.
The real problem of divorce starts when the court grants divorce for the couple who are parents too. The court has to decide the custody of the children of divorced parents. Further, there is need to understand the child property rights after divorce in India. Many ways are identified to solve this problem. In general, The Guardians and Wards Act, 1890 is the act which governs the legal procedure pertaining to the custody/guardianship of children in India. The common 3 types of guardianships are as follows:
The Joint Physical Custody concept was newly evolved concept in which both the parents will have a right to legal custody of the child but one of them will have the physical custody, where the child resides with one parent will be the primary care taker too.
Under this method court decides one of the parents be unfit to take care of the child thus, the court decides to grant the other parent to be the guardian for the child.
Both the biological parents are not going to be the guardian, in such cases court may appoint a person as a guardian of the child under Indian Guardians and Wards Act, 1890.
Every Law relating to marriage, divorce, maintenance, adoption, custody have their base from different religions similarly, these custody rules also have 3 different religious background
Under Hindu Law:
The mother is who usually gets the custody of a minor child if the child is below the age of five and if the child is more than the age of 9 the child’s consent is considered by the court. If the mother is proven to be neglect court may not provide the custody of the child to mother. And if the case is about an older boy’s fathers are given more priority and if it is about the elder girl then the mother is given more priority.
Under Muslim Law:
In Muslim law, Mother is given the Right of Hizanat (right to custody) of her child in all cases. This right will be given to father only when the mother is convicted for any misconduct.
Under Christian Law:
When it comes to a Christian family, both the parents will be given legal authority to be the guardian of the child but the problem arises when it comes to the residence of the child. Court has to decide only about the residence of the child after divorce.
With the divorce, all of your rights and responsibilities towards each other dissolve and you are no more responsible for the events happen in your partner’s life. This can be the devastating situation in your life, but remember that you’re not the only one and moreover, you will be back to your most desired days of freedom i.e., “Singlehood”. Here, the question arises that “how will you compromise to remarry after divorce?” According to the studies, it is found that it gets difficult to trust anyone, believe in the commitments and imagine a happy married life again, but the life must go-on. As far as child property rights after divorce is concerned, the same is governed by personal law of parents as well as the child. There is a separate Article on this subject of property distribution. However, what is important is the fact that child property rights after divorce is duly protected under the personal law as well as secular law of india.
What Does Law in India Says About Remarriage After Divorce?
There is a frequent question which clients ask is “Can you get Married right after a divorce”? Let’s talk about what does law says in India for the remarriage after getting the divorce?
The answer is yes, you can get married right after a divorce. However, in the case of decree of divorce, both the parties have to wait for at least a period of 90 days before tying knot with some other person or getting married again. Further, while answering the question “Can you get Married right after a divorce” one has to keep in mind if the divorce is by consent or by contest.
Section 15 of the Hindu Marriage Act, 1955
Decree of Divorce: 90-days period for the appeal is given to both the parties from the day of decree of divorce and if there is no appeal made during this period, then either of the parties become eligible to remarry after the given appeal period gets over.
Mutual Consent Divorce: But, in case of mutual consent divorce, there is no such limitation for remarrying after the divorce as it has a very genuine reason that the divorce has been already granted on the grounds of the agreement of both the parties, so in such case the question for appeal later doesn’t arise. Here, either of the divorced parties can remarry any day again after the divorce is granted.
Can I sue my spouse after divorce?
Another frequently asked question by client is “can I sue my spouse after divorce”? The answer is yes, you can, for any civil or criminal wrong. However, as far as matrimonial/property issues are concerned, the things are not that simple. In one such kind of case in 2018, the Supreme Court of India has upheld the order passed by the Rajasthan High Court that- “the absence of an ongoing domestic relationship doesn’t stop a court from granting relief to an aggrieved woman. After the Supreme Court’s verdict, a woman can file a complaint of domestic abuse under the domestic violence law against her husband even after their divorce or separation. This was recorded in a marital dispute matter.
The appeal said if the domestic violence law which came into the existence in October 2006, was allowed to be applied retrospectively then it could be misused. Most of the times, the marriage end is antagonistic and the law could be proven as the weapon in the wife’s hand to take the revenge.
At that time, court rejected the appeal and said, “If the aggrieved individual had been in a domestic relationship at any point of time even prior to coming into the force of the Act and was subjected to domestic abuse, the individual is entitled to invoke the remedial measures provided under the Act.”
Now the law has changed which says that, even after the dissolution of marriage, if an ex-husband attempts any kind of misbehave, abuse or violence with his ex-wife such as stalking her, trying to threaten or intimidate her or her family members then that woman can get the protection from the law. She can also knock the door of court if her ex-husband tries to wrongfully ditch her from the shared property or household which is jointly owned by them.
This Article is written by Mr. Pankaj Ailani, an Intern with our law firm, under the guidance and supervision of the Seniors of the Firm.
It was held in the case of Raichand v. Dattatrya that “the term property in its most broad sense covers all legal rights of a person save his personal rights, which define his position or personal situation.” The Supreme Court of India interpreted the idea of property in the case of R.C. Cooper v. Union of India. The Court emphasized in this decision that the term “property” covers both corporeal objects like land and furniture and incorporeal things like copyrights and patents.
There are several laws in our country dealing with property and its distribution. Some of them are the Transfer of Property Act of 1882, the Partition Act, the Indian Succession Act and The Hindu Succession Act etc. However, we must remember that India is a country of diverse religions and communities. Hence, people belonging from different religious background have different laws applicable on them for division of properties. For example, if you are a Hindu and want the Partition of Property among family members, you have to abide by the provisions of Hindu Law for property distribution.
Similarly, if you hail from religious communities like Christianity and Islam, you must follow the rules propounded in Christian and Mohammedan Laws for partition of properties. Property Partition law in India is a vast topic, read on to gather in-depth knowledge about property law in India as well as property distribution law in India and how it influences the partition of property among family members in India.
Partition, according to Black’s Law Dictionary, is the division of lands owned by joint tenants, coparceners, or tenants in common into different sections in order for them to possess them in severalty. It refers to the partition of real or personal property among co-owners or co-proprietors.
There are several laws in India that deal with property, as follows:
According to the Partition Act, in the event of a partition suit, if the Court determines that the partition of the property cannot reasonably occur or that the sale of the property is more beneficial, the Court may, at the request of the shareholders interested, direct the sale of the property and distribution of proceeds.
The family property partition law in India states that any other shareholder may seek permission to purchase the parties’ shares, and the Court may then provide a valuation and sell the property to the applicant. The Act sets specific regulations for what happens if two shareholders disagree. The terms of the Act also address the rights of a family member to acquire the portion of a stranger ‘suing’ for division.
Section 9 of the Act empowers the Court to divide the property evenly, sell reminder property, and distribute the revenues. Various proposals for amending the Partition Act of 1893 were presented in the 86th Law Commission report, however the revision has yet to be implemented.
The Indian Succession Act addresses both testamentary succession and intestate succession. Testamentary succession is the process by which a person specifies in a written document known as a “Will” to whom his property will pass after his death. In the absence of such a written instrument, the deceased’s property would be allocated according to his religious law, a process known as Intestate Succession.
If no personal law applies to the individual, the Indian Succession Act takes effect. Similarly, the Indian Succession Act applies to Christians for both types of successions, but the Indian Succession Act applies to Buddhists only for Testamentary Succession rules.
In the case of Christianity, the religion of the heirs is irrelevant, but the deceased must have been a Christian on the day of his death. Furthermore, an adopted kid will not have the same rights as a biological child.
As the name implies, the Hindu Succession Act governs Hindus. The Act states that a person who changes to another faith can still claim his part of the family property. However, this was not the case previously. Previously, if a person left the Hindu faith or converted to another religion, he could not claim his title to ancestral property, but the Caste Disability Removal Act changed that, and such people are now under-protected by the law.
Unless they were Hindus at the time the succession opened, the descendants of the converted individual do not have the title to the ancestral property.
In the case of Shabana Khan v. D.B. Sulochana and Ors., it was determined that the converted individual can still claim his title to ancestral property, but his kid cannot.
As far as Islamic law for property distribution is concerned, when both partners are Muslims, the Muslim Personal Law (Shariat) Application Act applies. Even though the son has changed to a different faith, he is the biological son with a claim to the family property. Besides, the Islamic law for property distribution in India also provides that if a kid is born outside of marriage, he has the right to claim ancestral property.
What kinds of properties are partitionable?
The land partition rules in India alongside Indian Property Laws states that there are two sorts of properties that can be partitioned:
Self-acquired property is defined as property bought with one’s own hard-earned money and not inherited from one’s forebears. Furthermore, any property obtained through gift or will is considered Self-Acquired Property. Self-acquired property cannot be divided throughout the lifetime of the individual who obtained it. During his lifetime, the individual who has acquired the property might form a Will specifying who he wishes to inherit his property from. If the property owner dies without leaving a will, the property passes to his Class 1 heirs. However, in the absence of a will, the personal law of deceased will come into play as property distribution law in India amongst the family members and relatives are closely associated with personal law of deceased and thus there is Hindu law for property distribution and there is Islamic law for property distribution and there is Christian law for property distribution and so on and so forth which will come in to play.
Ancestral property is defined as any property gained by a person’s progenitors. A property of this kind must be four generations old. A person born in that family has a vested interest in the property, which implies he gained it by virtue of his birth in the family, and such property can be partitioned.
“The right to forcible division is a common law gift granted to all coparceners. “This right exists not by decision, but by God’s mercy (vested interest). As a result, such a right must be honored,”
Methods for Dividing Ancestral Property
The procedures for partitioning an Ancestral Property are as follows:
Property can be divided by mutual consent through a partition deed or a family settlement.
Deed of Partition
The partition deed distributes the property among the co-owners. This deed is produced to divide the land so that each individual has indisputable ownership to his or her own portion of the property. The division deed is carried out by the co-owners. This is accomplished by dividing the property into equal shares for each co-owner as per the partition law in India. This does not imply that the property would be shared evenly. The division is mandated by legislation.
Acts that control partition by partition deed
Where there is no unique legislation controlling that particular faith, the partition by deed is controlled by the various religious acts or the Indian Succession Act. For example, if you belong to the Islam religion, you need to follow the rules laid down by the Indian Muslim law for property distribution. With the execution of the Partition Deed, each co-owner becomes the absolute owner of their half of the property and can dispose of it as they see fit. This implies they may sell, transfer, or give it to anybody they wish.
The deed must be recorded and executed on stamp paper in a clear and unambiguous way, detailing the portion assigned to each co-owner.
“The purpose of partition procedures is to allow people who possess property as joint owners to end it so that everyone has a solitary estate in a specific property or an allotment of the lands.”
Family Agreement
Property can also be distributed by family settlement if the family does not want the Court to become involved; instead, they negotiate and settle the situation. The family settlement agreement does not have to be on stamp paper or registered. It does not have to be written, but it must be completed to the satisfaction of all co-owners.
Before filing a partition suit, a legal notice must be sent to all co-owners outlining their interest in the property, their portion, and the action to be taken, as well as an attempt to resolve the disagreement. Even if the matter is not resolved, a civil complaint is filed with the Court.
Limitation Time: According to the Limitation Act of 1963, the limitation period for filing this complaint is twelve years from the moment the defendant’s ownership became adverse to the plaintiff. The opposite party, however, bears the burden of establishing that the claim is time-barred.
Court Fee: The Court decides the court costs based on the value of the suit, and the court fees must be paid before the suit may be filed. The price varies depending on the case and the corresponding state jurisdiction.
Time Involved: The time involved in a partition litigation cannot be determined since it is entirely dependent on the facts of each case and the difficulties involved.
Probate is a certified copy of the Will under the Court’s seal. Probate can only be granted to the executor named in the Will, according to Section 222 of the Indian Succession Act of 1922.
Following the filing of the petition, the Court publishes a notice in any major newspaper inviting objections. If there is no opposition, the Court grants probate after reviewing the facts.
Limitation Time: The limitation period for filing a probate petition is three years from the day the cause of action or right accrues, according to Article 137 of the Limitation Act of 1963.
Court Charge: Depending on the facts of the lawsuit and the state jurisdiction, a court fee must be paid.
Time Involved: There is no time limit established in any legislation as to when the suit must terminate. It is entirely dependent on the facts and circumstances of the case, as well as the technicalities involved.
Partition Suit
A Partition Suit is filed when a party or parties claim rights to a piece of land or building and file a case in court as a result of a family property dispute. If family members are willing to discuss property division, a Partition Deed must be drafted in accordance with the Partition Act of 1893. It is an official document that is established either by Court Order or via the parties’ dialogue. It specifies the parts of the property that each party would be entitled to. A division deed must also be approved by the Court. To have legal and binding effect, this new division deed must be registered with the Sub-office. Registrar’s The deed must then be recorded and drafted on stamp paper in a clear and unambiguous way by the party or parties. It specifies each person’s portion as well as the date of the division property. If the families still need to resolve this in court, they must file a Suit of Partition at the court where the case will be heard.
Partition law in our country is one of the most complex statutes. Besides, it has many amendments, making it a very complex subject with various nuances. If you need guidance on the matters regarding the Partition Act, 2013 or anything else, taking professional help would set you up for success. So, go ahead and act accordingly.
Hope the above article gives you some clarification on the Property law of India as well as Partition of property among family members and property distribution law in India. This Article is written by Mr. Pankaj Ailani, an Intern with our law firm, under the guidance and supervision of the Seniors of the Firm.
The content of this document do not necessarily reflect the views / position of RKS Associate, but remains a probable view. For any further queries or follow up please contact RKS Associate at [email protected]