Domestic Violence

Matrimonial Cruelty to be differentiated from Legal Cruelty.This is the case of Anaya ( name changed) who committed suicide 5 years after her marriage with Sudhir ( name changed). Anaya’s parents filed a complained that she was tortured by her husband and in-laws until she hung herself from the ceiling fan and committed suicide in her husband Sudhir’s house. The accused and co-accused were convicted of the offences punishable under Sections 498A and 306 read with Section 34 of the IPC and Sudhir was sentenced to suffer rigorous imprisonment for 3 years for the offence punishable under Section 498A read with Section 34 of the IPC and to suffer rigorous imprisonment for 10 years for the offence punishable under Section 306 read with Section 34 of the IPC.

Sudhir and his family submitted an application and appealed to the court to suspend the sentence and grant bail to the applicant during the pendency of appeal. The court allowed the Application.

Why? The Court held that “Cruelty implies harsh and harmful conduct with certain intensity and persistence. It covers acts causing both physical and mental agony and torture or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miscarries. The conduct, in order to prove guilt, must be such as strongly stirring up the feeling in the mind of a married woman that life is now not worth living and she should die, being the only option left. In other words, provisions of Section 498A of the IPC envisage intention to drawing or force a woman to commit suicide by unabated persistence and grave cruelty. A willful conduct of such a nature as is likely to propel or compel a married woman to commit suicide or to cause grave injury or danger to her life; limb or health is required to be established. In other words, matrimonial cruelty is to be differentiated from the definition of legal cruelty. To put it in other words, ordinary petulance and discord or differences in domestic life does not amount to cruelty”. To conclude, without knowledge and intention, there cannot be abetment. Matrimonial cruelty is different from legal cruelty.

Live in Relationship/Cohabitation

This Concept is defined by the Supreme Court of India in a notable Judgement in the simplest manner. “A domestic cohabitation between an adult unmarried male and an adult unmarried female” Concept of live in relationships is being adopted by numerous couples around the world including India. Unlike marriage there is no specific law for the same hence according to the Supreme Court any couple living together for a long term will be presumed as legally married unless proved otherwise.

What is the Legal Right of children born out of such relationships?

Inheritance rights of children are mentioned in the Hindu Marriage Act, where the legal status of legitimacy is provided even to illegitimate children (those born out of wedlock) for the purpose of inheritance. Inheritance rights have been granted to children born out of a live-in relationship. These rights are available in both circumstances ancestral and self-bought properties.

Asha (name changed) was a qualified IT professional and had a good job in a multi-national company. She earned well and lived with her parents in a suburb in Mumbai. Shailesh often visited their company and he met Asha regarding some maintenance work in Asha’s department. Gradually, they became friends, shared numbers, met for coffee and eventually started enjoying each other’s company. As they drew closer to each other, they thought they would make a good married couple and decided to tie the knot.

Shailesh promised to marry Asha, however, both had not disclosed their affair to their parents. The intimacy grew to a physical relationship and Asha did not hesitate as she had complete faith in Shailesh. They began to meet regularly in a hotel and continued their sexual relationship for around 8 to 10 months. Asha thought it was high time they thought seriously about their marriage. She introduced Shailesh to her parents and announced her decision to marry him. The parents gave their consent as the boy was good, he had a good income and belonged to a respectable family. Their chief concern, of course, was their daughter’s happiness. Shailesh’s parents too agreed to their marriage.

Shaileha and Asha got engaged to each other. Few months passed and Asha’s parents insisted on fixing an early date for the marriage. However, Shailesh kept on avoiding the topic every time they approached him. Meanwhile, Asha and Shailesh continued meeting and having sex. One day, Shailesh told Asha that he was in a financial crisis and wanted Rs. two lakhs. She thought that soon they would be married and that she ought to help her partner in difficult times, so she gave him the money. A couple of months later, he asked for another two lakhs and this time too, she gave him the money. At the same time, she urged him to fix the marriage date.

Asha’s parents were worried about the delay. They visited Shailesh’s parents one day and brought out the topic seriously. With great reluctance, Shailesh agreed to date three months thence. Once more, he demanded Rs. three lakhs from Asha. This time Asha did not give him the amount willingly. As the date of marriage drew near, Asha noted a change in his behaviour and asked him what the matter was. He said that he would not marry her until she gave him Rs. 5 lakhs more. Asha smelt something foul. She lodged a complaint of rape and violence against him.

Sexual Harassment Twisting facts to fit into law!!!

Girls or women often approach the court for being raped or sexually harassed. As per the dictionary, rape indicates sexual intercourse without the consent of the victim. Here is an interesting case of Sheela (name changed) and Raghuveer (Name changed). Sheela complained that she was raped by Raghuveer in a hotel, but he promised to marry her. Under the pretext of his promise, he had physical relationship with her several times. Eventually they got engaged and the date of marriage was fixed. They got married after four months.

A month after the marriage Sheela was stunned by Raghuveer’s behaviour as he use to force her to have sex with him even when she was unwell. In a month’s time Sheela filed a case in the court against Raghuveer that she has been sexually harassed and raped by him repeatedly, that he used to beat her, torture her.

Now the question is, was Sheela sexually harassed by her husband and raped?

In this case, the Hon. High Court held that, “It cannot be said that act of marriage is a precedent for giving a free consent for sex”. Thus, Rughuveer was Convicted for sexually harassing and raping Sheela. So beware! Marriage is not a free consent to have sex. You cannot twist facts to fit into the law!!

No entry sons!!!

Death is a reality that none of us can escape. A common misconception that people have is, if one opts to draft his Will, he is nearing his death or it is only something that “old people need to”. People often believe that “they are still young, why they would require a Will as nothing will happen to them”. Since we cannot be certain about the duration of life, it is advisable to document a Will in the life time of a person to mitigate uncertainties that may arise with respect to properties and assets of a person after his demise. A Will is a document which ensures that your wishes regarding your assets and property are followed after your death. Pragmatically, the concept of Will is not limited to any age group. Without a Will, there can be serious legal and administrative problems in dealing with your estate when you pass away – not to mention that a Will can ensure that your assets are amicably distributed in the way in which you desire. If you want to provide your best for your loved ones after you pass away, a Will is a most necessary document.

Following are some general queries in relation to Will:

Question1. Who can make a Will?

Any person who is not a minor, and is of sound mind can make a Will. Also, the maker of the Will (“Testator”) must make the Will by his own unconditional wish, free from any fraud, coercion or undue influence.

Question2. What all should a Will contain?

Identification information (full names and addresses) of the person whose will it is, two witnesses their Full names Addresses and Photo ID Xerox Self Attested, the executor’s details, and all beneficiaries. As well as it should contain information about paying off any debts and taxes and identifying all of your assets. The will should set out who the beneficiaries are, and what they are entitled to. In addition, the will should explain how any outstanding debts will be paid. If you have minor children, your will should appoint a Guardian to look after them. The Will must Contain the List of one’s Assets and Properties which may be any property, asset that may be Self earned, Inherited from someone and Jointly owned. It could be movable properties, immovable properties, shares, fixed Deposits, Stocks etc. mentioned precisely so that property and assets are identified clearly. Format for drafting 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. Day and date on which it is made is to be mentioned. The Will must be initiated by the testator (maker of the will) at the end of every page and next to any correction and alteration.

Question 3.Which Language is to be used for making a will?

A Will can be written in any language and no technical words are required in a Will however the words used should be clear and unambiguous so that the intention of the testator is reflected in his Will.

Question 4.When should a Will be updated?

One should update the will whenever circumstances change. This normally includes important family changes such as the birth or death of a family member , Partition of property or addition or reduction in assets and properties.

Question5.Does a will need to be printed on stamp paper and registered?

No it does not. There is no need to pay stamp duty on a will. It is the choice of the testator whether to register it or not there is no such hard and fast rule that it needs to be registered

Question6. Is it necessary to notarize a Will?

No it does not need to be notarize.

No entry sons!!!

The Old Joshi couple was happy with their daughter married into a good family and also their elder son. The happiness was complete when their younger son Sudhir got married. There was no problem at all. They had a big bungalow in Pune. The elder son Mihir lived on the second floor while the old couple occupied the ground floor. Sudhir insisted on living separately. He was accommodated in part of the ground floor. With two sons well-settled in their jobs and living in the same building, The Joshi couple should have been the happiest couple in the world. Unfortunately, they cared little for their parents. They did not care to clean the premises or to pay the taxes or bills and lived for the most part at the expense of their old parents. They did not look after them if they fell ill and did not bother about their food. Conflicts and quarrels took place every day. How long would the parents tolerate the cruelty of their sons? Since the behaviour of the two sons and their wives became unbearable, they filed a suit seeking a decree of mandatory injunction directing them to vacate the floors in their possession and also to restrain them from creating any third party interest in the said property.

Indeed, law came to the aid and gave them relief. They filed a case against their sons. It was proved that the property of was self-acquired. It was not inherited by Mr. Joshi senior. It was stated that sons, whether married or unmarried had no right to occupy property that is self-acquired by parents. They can live in their parents’ house only if the parents grant them permission.

Sudhir and Mihir were ordered by the court to pay the bills and compensation amount and vacate the house immediately.

No entry for you sons, when you do not care for parents!!!!