Alimony

Alimony

It is a Latin word. (alimonia = sustenance, nourishment)

Two types of Alimony:

1. Alimony pendente lite (till the decree of divorce is passed)

2. Alimony permanent (Post-Alimony) granted at/after divorce is passed.

Even a divorced wife can claim her maintenance till she married another.

It is the duty of the husband to maintain his wife during her lifetime.

Alimony is also called as 'spousal support' or 'maintenance.'

Even the husband can ask for such alimony from his wife, if he is unable to maintain himself.

In India, the amount of alimony shall be decided by the Judge at his discretion depending upon the life style conditions of the spouses.

Now a new law is proposed in India.

The Marriage Law's (Amendment) Bill 2010, which is going to deal with division of spouses’ properties in the event of divorce.

The idea behind is to allot 50% share to the other spouse, at the instance of divorce, in the properties purchased either of them after their marriage.

Judicial Separation

Judicial Separation under the Hindu Law:

It is a separation of a spouse from the other spouse, from the obligation of living together.

It is a decree passed by the Court on the application of either party.

The reason for Judicial Separation is the same for the divorce.

Judicial Separation is not at all a complete dissolution of marriage.

It legally encourages to living apart.

After passing of the decree of Judicial Separation, the spouses have no such obligation to live together or cohabit with other.

It is a ground for divorce if the decree of Judicial Separation prolongs for one year.

Application for Judicial Separation can be filed at any time during the subsistence of marriage, but in the case of Divorce such application can be filed only after one year of the date of such marriage.

All the grounds for Divorce are also available for the application of Judicial Separation.

If the marriage itself is ‘void ab initio’ (from the very beginning itself), no such Judicial Separation can be sought, but can file an application for nullity of such marriage.

(Void marriages are such as bigamy, prohibited degree of relationship and the relationship of sapindas of each other; though such marriages are legally null and void, the children born out of such marriages are legitimate).

Grounds for Divorce:

1.       Having sexual relationship with any third party, other than his/her spouse.

2.       Treating cruelly (both physical and mental) – drunkenness is not amounting to cruelty, but it should be coupled with inflicting such cruelty.

3.       Deserting the other spouse for two years without any legal reasons.

4.       Converting into other religion.

5.       Either spouse is suffering from unsoundness of mind like schizophrenia.

6.       Either spouse is suffering from incurable leprosy, communicable venereal disease.

7.       Either spouse renounced the world and entered into religious order.

8.       Either spouse has not been heard as of his/her living for 7 years.

9.       No cohabitation for one year after passing of the decree of judicial separation or restitution of conjugal rights.

10.   Wife can also ask for divorce on the special grounds viz. (1) her husband has married another lady; (2) her husband is guilty of rape; (3) if he has not cohabitated for more than one year after passing the Court’s order of paying maintenance to her.

Judicial Separation as an ALTERNATIVE RELIEF:

Judicial Separation may be granted by the Court in the Divorce proceedings or as interim relief during the divorce proceedings.

We do not know the psychological reasons behind it in the minds of the parties who are very much interested to get Divorce rather than getting Judicial Separation.

The Courts may encourage passing such decrees of Judicial Separation rather than Divorce decrees in appropriate cases in the interest of society and to find out the bona fide of the ‘irretrievability of the broken marriages.’

guardian ad litem

Guardian ad litem (guardian for the litigation)

Guardian ad litem means ‘guardian for the litigation’

‘ad litem’ is a Latin term.

This guardian is acting like a ‘curator.’

Under the Indian Civil Procedure Code the suit, on behalf of the minor, should be instituted by the ‘next friend’ of that minor. He/she is guardian for the litigation of the minor (or guardian ad litem).

In the normal court practice, the ‘guardian ad litem’ is shortly used as ‘GAL’.

In some western countries, he is called as Attorneys for the child (or AFC).

Guardian ad litem is the ‘care taker’ of the child (or minor).

Such guardian ad litem shall act solely for the welfare of the minor child.

As he is the guardian for litigation of the minor child, he cannot sell or otherwise dispose of the minor’s property.

The Indian Majority Act 1875 (the oldest Act still in force) says ‘every person domiciled in India shall attain the ‘age of majority’ on completion of 18 years (i.e. at the beginning of 18^th anniversary or on his/her 19^th Birthday) and not before, unless the personal law specifies otherwise and in the matter of religious rites and usages.

The personal law of the minor person applies only respect of his/her marriage, divorce, dower, adoption.

A ‘minor’ under Mohammaden Law is a person who has attained puberty.

Puberty: In the case of a boy is the 15^th year of the boy; in the case of a girl on her 15^th year or on the date on her actual attainment of puberty, whichever is earlier. (Note: this is only for his/her marriage, dower and divorce; in other matters the Indian Majority Act 1875 will apply).

Under old traditional Hindu Law, the majority of a Hindu minor was 15 years in South India and 16 years in the other parts of India. After the passing of the Hindu Minority and Guardianship Act 1956 the majority age of the majority is on completion of 18 years.

Under the Hindu Marriage Act 1955 (original Act) the age of valid marriage was fixed at 18 for the boys and 15 for the girls. Subsequently by the Child Marriage Restraint (Amendment) Act in the year 1978, this age limit has been raised to 21 for the boys and 18 for the girls.

The Guardians and Wards Act 1890

Under this Act the District Courts (and also the Chartered High Courts) are having power to appoint guardian of the minors (of his person or property or both), who belong to any religion.

factum valet

Factum Valet

It is a Latin maxim - ‘factum valet quod fieri non debuit’

It literally means that ‘what ought not to be done, become valid when done it already.’

This doctrine was applied on the grounds of equity, justice and good conscience while administrating the old Hindu Law texts.

Certain formalities stipulated in the old Hindu Law were ‘directory’ or recommendatory. Violation of such formalities were cured by this doctrine.

If such formalities are ‘mandatory’ in nature, then this doctrine cannot be applied to cure such defect.

Before the Hindu Marriage Act 1955 there was no codifying Act for marriages of Hindus and it was regulated only by the ancient Hindu texts, Dharmasastras. In the ancient Hindu texts there were no mandatory rules to be followed; and if anyone contravened such guidance found in the ancient text, he/she could do so; and on such doing it was excused by applying the principle of ‘factum valet.’ i.e. such violation of the guidelines in the ancient texts could be cured as if it was not prohibited in anywhere in the ancient texts.

In the ancient text, the father had to give consent for the marriage of his minor daughter given in marriage to a boy. In the absence of the father, his wife i.e. the mother of the girl gave such consent to such marriage. In the ancient Hindu text, only the father had to give such consent and not the mother. Though it was not prohibited, the mother had done it. Such defect in giving consent was cured by applying this principle of factum valet.

NOW most of the Acts, Rules are mandatory in nature and hence this doctrine is seldom applicable.

Who is a Mitakshara Hindu?

Who is a Mitakshara Hindu?

Srutis: Srutis are ‘Vedas’.

‘What was heard from the God is called Srutis.’

There are four vedas viz. Rig, Yajur, Sama and Adharvana.

Sage Vyasar gave those Vedas.

Smritis: Smritis are what was recorded by the sages from Vedas.

Among the various Smritis, Naradha Smritis and Manu Smritis are famous.

Naradha Smritis deals with the power of the kings to make laws.

Manu Smritis and Brihaspati Smritis deal with all types of laws.

All the Smritis did not agree with each other and they differ in their own commentaries.

Their commentaries are called as ‘Nibandhas.’

Mitakshara School:

Vijnanesvara, a scholar, commended on the Smritis called ‘Yajnavalkya Smritis.’

Vijnanesvara’s commentaries on Yajnavalkya Smritis are called as Mitakshara School of Hindu Law. (It is prevailing throughout India except Bengal and Assam).

Jimutuvahana commentaries on Yajnavalkya Smritis are called as Dayabhaga School of Hindu Law. (It is prevailing in Bengal and Assam).

These two Schools are considered as one of the main authorities on HINDU LAW.

The main differences of the two Schools are:

1.       Under Mitakshara School, the right to inherit property is by birth of a son.

2.       Under Dayabhaga School, the right to inherit property is not by birth but only on the death of the father.

3.       Under Mitakshara School, the nearest in blood relation would get the property.

4.       Under Dayabhaga School, the person who offering ‘pinda’ (food offered to the deceased ancestor) would get the property.

5.       Under Mitakshara School, the devolution of property is by ‘survivorship.’

6.       Under Dayabhaga School, the devolution of property is by ‘inheritance.’

Under the old Hindu Mitakshara Law, only the male descendants alone take the joint family property and the females were not entitled to a share in the joint family property.

NOW after passing of the Hindu Succession Act 1956, it was changed drastically and thus certain female members are also entitled to the joint family property.

NOW after the Amendment Act 2005 (to the Hindu Succession Act 1956) the daughters are equally entitled to, at par a son, in the joint family property.

Illatom Son-in-law

“Illatom Adoption”

It is an adoption of a ‘son-in-law’ instead of a ‘son’

This type of adoption prevails in some particular communities that too in agricultural families of Tamil Nadu and Andhra Pradesh.

The father-in-law adopts a son-in-law instead of a son and gives his daughter in marriage and keeps his daughter and son-in-law in his family.

The adopted son-in-law, after marrying the daughter of his father-in-law stays in the family of the father-in-law and helping him in all family management as if his son.

Though the adopted son-in-law is ‘not a son of the adopted father-in-law’ like a coparcener but he has the same rights of a natural son in all practical purposes, except the right of partition in the father-in-law’s property.

He is called as ‘illatom son-in-law’.

It prevails only in some particular communities of Hindus and no such custom among Christians and Muslims.

These customary incidents being well known would not ordinarily be the subject of specific agreement, as it is settled by the Privy Council’s decision in Krishnamma vs. Venkatasubbayya (1919) 37 MLJ 1: LR 46IA 168: ILR 42 Mad 805(PC) that the practice of illatom affiliation is frequently followed even when the family, into which the son-in-law had been taken, has a natural son living.

Doctrine of Relation Back

Doctrine of Relation Back

It is the doctrine against the principle of ‘inheritance once vested cannot be divested’

In the old Hindu law, if a Mitakshara Hindu adopted a son during his lifetime, such adoption is valid from the date of his adoption.

Suppose such adoption was taken by the widow of the Mitakshara husband, it takes effect from the date of death of her husband, which relates back to the earlier date.

This principle was on the logical basis that they cannot prejudice by partitioning the rights of the after-born male member whether the birth is natural or legal.

The new arrival (either by after-born or by legal adoption) can obtain a reopening of the partition and thereby get his share.

The Supreme Court has laid down that the fiction that an ‘adoption’ relates back to the date of death of the adoptive father applies only when the claim of the adoptive son relates to estate of the adoptive father.

But where the succession to the property of a person other than the adoptive father is involved, the principle applicable is not the rule of relation back but the rule, that inheritance once vested cannot be divested.

NOW:

After passing of the Hindu Adoption and Maintenance Act 1956 this doctrine of ‘Relation Back’ was abolished.

The Sec.12 of the Hindu Adoption and Maintenance Act 1956:

Sec.12: Effect of adoption:

An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.

Ejusdem Generis

Ejusdem Generis:

It is a rule of interpretation which means that 'where general words follow specific words.'

General words should be given their natural meaning like an ordinary word; but when a general word follows a specific word or words, the general word may be given a particular meaning of that same category of the specific word.

The legislature intended general words to be used in unrestricted sense; there is no difficulty in interpreting that general word in the ordinary meaning.

Hence the rule of Ejusdem Generis must be applied cautiously, because it departs from the natural meaning if it follows the specific word of that category.

The words "any other purpose" means 'not all other purposes' but it means 'any similar purpose.'

The word 'or otherwise' means 'not whichever way' but 'in a similar way of the preceding words of the same kind.'

Eg. Get a licence for motor bus, motor car, motor cycle, motor van, or like that.

The word 'like that' means a similar vehicle, but it never try to mean a 'bullock-cart.'

Human Trafficking

Human Trafficking:

Traffic means 'deal or trade in something illegal.'

Human Trafficking means "organized criminal activity in which human beings are treated as possessions to be controlled and exploited (as by being forced into prostitution or involuntary labour).

Definition of 'human trafficking' as:

“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;”

Human Trafficking:

Human trafficking is the trade in humans, most commonly for the purpose of sexual slavery, forced labor or commercial sexual exploitation for the trafficker or others; or for the extraction of organs or tissues, including surrogacy and ova removal; or for providing a spouse in the context of forced marriage.

News by American Red Cross:

27 million people a year are affected by human trafficking and contemporary forms of slavery.

While human trafficking takes on many forms, from forced labor and domestic servitude, to child soldiers, prostitution and the illicit drug trade, the problem is global and one of the most urgent transnational issues we face today. (News by American Red Cross)

The Indian Govt passed the penal law of 'The Immoral Trafficking Prevention Act (ITPA).'

Apart from that the IPC sec.366-A and 372 prohibiting kidnapping and selling minors into prostitution respectively.

Trafficking is an offence in IPC. Now, the new law on ‘Trafficking for labour’ has been replaced with a new definition of ‘trafficking for physical exploitation.’

In India:

Trafficking is steadily rising despite the law of the Immoral Traffic (Prevention) Act 1956.

A report in 1996: 'there were 2.3 million women in prostitution in India, a quarter of whom were minors.' Sexual slavery is rapidly decreasing. Children are mainly trafficked for the purpose of commercial sexual exploitation.

Appointment of Judges to higher Judiciary

Appointment of HC/SC Judges in India:

A Judge of the Supreme Court shall be appointed by the President by the warrant under his hand and seal after consultation with which such Judges of the Supreme Court and of the High Court in the State as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years. (Article 124 of the Constitution). (Now a new law is proposed).

Similarly, a Judge of the High Court shall be appointed by the President by the warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and in case of an appointment of the Judge other than the Chief Justice, the Chief Justice of the High Court and shall hold office except in the case of an additional judge till he attains the age of 62 years. (Article 217 of the Constitution).

The only mode of removal of a Judge from his office, by impeachment, on the ground on the ground of proved misbehaviour or incapacity is laid down in Article 124 (4) and (5) of the Constitution. The Judges (Inquiry) Act, 1968 has been enacted by Parliament to regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a Judge of the Supreme Court under Article 124.

In United States’ Constitution:

Under Article II, Sec.4 of US Constitution, the President, VicePresident and all civil officers of the United States can be removed from the office on impeachment for, and conviction of, 'Treason, Bribery or other high Crimes and misdemeanours.'

Since President of US who is the, highest executive authority of the State, an impeachment has been provided for an in fact, President Johnson was impeached in 1867 for high crimes and misdeaeanours.

In 1917, Justice Archibald of the Commerce Court was removed from office by impeachment for soliciting for himself and others, favours from railroad companies.

In England:

In England, offices held during good behaviour may in the event of misconduct be determined by impeachment. In practice, an address to the Crown for the removal of a judge must originate in the House of Commons. The procedure is judicial and the judge is entitled to be heard. (There is no instance of the removal of judge by this method.)

(A person holding his office ‘during his good behaviour’ instead of 'at pleasure.')

“Be you ever so high, the law is above you.”

“Be you ever so high, the law is above you.”

Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says "Be you ever so high, the law is above you."

This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community.

It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.

Independence of Judiciary

Independence of Judiciary:

The concept of independence of judiciary is a noble concept which inspires the Constitutional Scheme and constitute the foundation on which rests the edifice of our democratic polity. 

If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective.

The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse or power by the executive and there it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provisions in the Constitution to which detailed reference has been made in the judgments in Sankalchand Sheth's case, reported AIR 1977 SC 2326.