Special Marriage - Related Law/Provision

Law/Provision in respect of Special Marriage other than Hindu Marriage......        

                                                            

- The Special Marriage Act 1954 provide provisions of special form of marriage , registration, divorce.

-conditions for special marriage- neighther party has spouse living, incapable of giving valid consent due to unsound ness of mind, unfit for marriage & procreation of children, recurrent attacks of insanity/male completed 21 years & female 18 years, parties are not within prohibited relationship (proviso custom at least one party permits marriage between prohibited degree).

-For solemnization of special marriage 30 days  publication of notice by Marriage Officer is mandatory .

-After expiration of 30 days from the date on which above notice has been published Marriage may be solemnized but within 3 calendar Months from the date of publication of above by Marriage Officer.

-Objection to above marriage may be taken within 30 days from publication of notice by marriage officer. Decision on objection shall be taken within 30 days. Aggrieved person within 30 days prefer Appeal to District Court within local limit of whose jurisdiction Marriage Officer has his office.

- Declaration  in the specified form of parties & 3 witnesses in the presence of Marriage Officer is mandatory.

- Any person aggrieved by any order of refusing to register marriage may within 30 days from the date of order file appeal to District Court & decision on such appeal shall be final.

- Petition for - Restitution of conjugal rights , judicial separation , nullity of Marriage & divorce shall be presented before District Court ( not before civil judge senior division) in respect of marriage solemnized under Special Marriage Act. ( Peruse S.22 to 27 ).

- Divorce by Mutual Consent shall be presented before District Court ( Peruse S.28 ).

- Same procedure  like petition under  Hindu Marriage Act is provided in different sections of of Special Marriage Act . ( i.e. verification, in camera , duty of court in passing decree, alimony pendent lite, permanent alimony, maintenance, custody of children, enforcement of decree evidence etc. )

......................................................................................

The Indian Christian Marriage Act 1872 & The Divorce Act 1869....

- Solemnization in India of the marriages of Christian - requirements, rules, rites ceremonies, customs , registration, authority of solemnization of marriage, time/ place of marriage , notice of marriage, registration of marriage, oath before marriage certificate are embodied in the  christian marriage act.

- Petition for dissolution of marriage, nullity of marriage, restitution of conjugal rights shall be presented before District Court. ( peruse S. 10,18, 19, 32 ) 

- Divorce by Mutual Consent shall be presented before District Court.

-Same procedure like petition under Hindu Marriage  Act is provided in the said act in respect other remedies.

.........................................................................

The Parsi Marriage & Divorce Act 1936..

Provision relating to marriage & divorce among Paris are embodied in the said act.

- Matrimonial suits for nullity, dissolution, divorce , judicial separation, restitution of conjugal right shall be presented before District Court. ( S.18 to 35 ) 

- Suit for divorce by Mutual Consent shall be presented before District Court. ( S. 34 B )

- Same procedure like petition under Hindu Marriage Act is provided in the said act in respect of other remedies.

.............................................................................

The Foreign Marriage Act 1969..

An act make provision relating to marriage of citizens of India outside India

- Matrimonial Relief of Foreign Marriages- Chapter IV to VII of the Special Marriage Act 1954 shall apply in relation to marriage solemnized under the said act or marriage in foreign country between parties of whom 1 at least citizen of India .

...................................................................................

The Dissolution Of Muslim Marriage Act 1939...

An act make provision relating dissolution of marriage by Woman married under Muslim 

Law & renunciation of Islam by married Muslim Woman on her marriage tie.

- A muslim woman may file  suit - for    decree for dissolution of marriage as grounds provided in S.2 of the said act.

- Renunciation of Islam by married muslim Woman or her conversion to a faith other than Islam shall not operate to dissolve her marriage S. 3 of the said act.

- Suit under the said act shall be presented / filled before Civil Judge Junior Division.

..... Please Comment & Give Suggestions....

To Know-Neglected/Rare Used- Provisions of Will

Some provisions in respect of will of hindu are neglected/ rarely  used in civil practice....(Ademption)
                                             

-S.152 of Indian Succession Act- explain ademption- it means property bequeathed does not belongs to testator or converted into different kind at the time of  death of testator.

- Due to ademption bequeathed property be withdrawn from the operation of will.

-S.153- A demonstrative legacy is not a seemed by reason that property charged by will does not exist at the time of death of testator or converted into different kind  but it shall in such case  be paid out of general assets of testator.

-S.154- A thing bequeathed is right to receive something of value from third party & testator receives in his life it  , the bequest adeemed.

-S.155- Receipt  by testator part of thing bequeathed shall operate as ademption of legacy to the extent of sum received.

-S.156- Receipt of portion of fund/stock bequeathed shall operate as ademption only to the extent of amount received & residue shall applicable to discharge of specific legacy.

-S.158- Stock bequeathed does not exist at the time of testator's death , the legacy adeemed.

-S.159- Part of stock bequeathed exists at the time of death of testator , legacy adeemed so far as regards to part of stock which has ceased to exist.

-S.160- No-Ademption of bequest goods due to reason of removal.

-S.161- Removal of thing bequeathed from the place does not constitute ademption.

-S.162- bequeathed money or other commodity received by testator from third person shall not constitute ademption.

-S.163- Thing bequeathed change undergoes between the date of will & testator's death due to operation of law is not ademption.

-S.164-Change of thing without knowledge/sanction of testator is not ademption.

-S.165-Thing bequeathed lent to third party on condition of replace is not ademption.

-S.166- Stock bequeathed sold but replaced & belonging to testator at his death is not ademption.

- Relevant provision....

-S.57 & Chapter XVI(16) of Indian Succession Act 1925

- Relevant judgement..

-Due to rarely use of the above provision in actual practice as per my knowledge/search no landmark judgement available...

...... Please Comment & give Suggestions.......

Common-Hotchpot / Partition Suit & Exception

Common-Hotchpot principle , Partition Suit & Exception.....           

                 
                   



-Common - Hotchpot -principle -Requirement..

-Every suit for partition by any member of hindu joint family shall ordinarily embrace all joint family properties.

- Suit for partition embrace all properties because complete , final partition of properties by mets & bound & to avoid repetition of litigation.

-If suit for partition does not embrace all joint family properties then it is not maintainable as per principal of common hotchpot. 

-Exception to above principle of common hotchpot.....

-part of family property held jointly with strangers , who have no interest in the family partition.

-If some property lie / situated outside India.
- Part/Portion of family property is in the possession of a mortgagee.

- If part of family property is an impartible Zamindari.

-If court permits as per under o.2 r.2 of C.P.C. to file suit for partial partition.

- If suit complete ingredients of partial partion as provided in un codified hindu law.

-Relavant provision....

- Para 332/327 of Mulla Hindu Law 21 (twenty first)  edition .

- Para 488/487/485 of Mayne's Hindu Law.

-O.2 R. 2 of C.P.C. 1908.

-Relavant judgement..

-Govindrao Gangaramji Ajmire v/s Dadarao alies Shrawan s/o Gangaramji Ajmire 2004 (4) M.L.J.653=2004 (3) All.M.R.660.

........ Please Comment & give Suggestions........

Self-acquired/Separate Property- Confusion

Confusion of Presumption, Burden of proof in respect of joint family property & separate/self-acquired property.......

-Self acquired property means property acquired in any following ways.

-property acquired by the coparcener without any detriment to ancestral property.

- property acquired by separate earning by coparcener.

-property inherited as obstructed heritage i.e. inherited from other than father, father's father, father's father's father.

-a gift of  small portion of ancestral movable property made through affection by father to his male issue.

-government grant exclusively granted to member joint family & not for benefit of the family.

-ancestral property lost by family & same is recovered by a member without aid of joint family property.

-property purchased by separate income which come from separate property.

-property held by a sole surviving coparcener, when there is no widow in existence who has power to adopt.

-separate earning of member by his own exertions, without aid of joint family property.

-all acquisitions made by means of learning are declared by hindu gains of learning act 1930.
..........…................

- No-Presumotion that a joint family possess joint property.
-Burden of proving that any property is joint family property is in the first instance upon the person who claims it as coparcener property & he also prove possession of nucleus of joint family for acquisition of it.

...... Relevant Judgement................................

-D.S.Lakshmaiah & And v/s L.Balasubramanyam & Anrs 2003 Supreme Appeals Reporter 817

-Bindiya A. Chawla & Ors v/s Ajay Lajpatrai Chawla & Ors 2009 Supreme Appeals Reporter 688

-Harihar Diwakar Choube & others v/s Govind Diwakar Choube & Others 2010(4) Mh.L.J. 524

-Relevant provision-uncodified Hindu Law - in respect of separate/ self acquired & coparcenary property, joint hindu family

-S.101 of Indian Evidence Act 1872.

.......... Please Comment & give Suggestions...

Adverse Possession - View

No Statutory Definition Of - Adverse Possession

-There is no  statutory definition of adverse possession but it is settled by way of judicial pronouncement and  following are basic essential requirements of it.

-The possession must be adequate/ uninterrupted in continuity to the knowledge of the true owner .

                       

- The possession must be adequate in publicity.

-The possession must be adverse to the competitor/true owner for period  of 12 years thereafter.

- Mere possession for long period is not sufficient to create adverse possession.

- A claimant of adverse possession must definitely allege/prove how/when adverse possession adverse possession commenced and know to the ture owner.

- A plea of adverse possession is not available to the claimant if he does not know real/true owner of the property.

-Permissive possession holder does not claim claim adverse possession. For example possession of tenant, licensee, mortgagee, possession on the basis of agreement to sale or any other legal document.

- Alternative plea  either title or adverse possession is not available to the claimant of adverse possession.

-Co-Parcener/Co-,Heir can not claim adverse possession against other coparcener/co heir.

- Section 27 and Article 64/65 of  The Limitation Act ,1963 are relevant provisions.

- Relavant Judgement

-Suit for declaration of title acquired by adverse possession is maintainable/it is heritable-Ravinder Kaur Grewal and others v/s Manjit Kaur and others 2019(6) Mah.L.J.87=2019 Supreme Appeal Reporter 945.( In the above judgement 58 case laws are referred)

**** Shri Uttam Chand(D) Thr.Lrs. v/s Nsthu Ram(D) Thr.Lrs. & Ors 2020 Supreme Appeals Reporter page 300

... Please Comment/give Suggestions..

KEY Provision-Interim Application-Civil Suit

Interim Applications in civil suit and it's provision...
....

-S.10 of C.P.C. - stay of subsequent suit.

-S.148 of C.P.C.-enlargement of time where any period is fixed/granted by court for doing any act/allowed by the code.

-S.153 of C.P.C.-general power to amend any defect /error in any suit.

-O.1R.10 of CPC- add/substitute/strike party (Plaintiff/Defendant) to suit .

-O.2R.2 of CPC- with leave of court- omits to file suit in respect of all reliefs accrued in respect of same cause of action.

-O.5R.20 of CPC- substituted service of summons- by fixing copy of summons on conspicuous place of court / house of defendant, advertisement in a local daily newspaper.

-O.5R.24-service of summons on defendant who is in prison.

-O.5R.25 of. CPC- service of summons  on defendant who resides out of India and has no agent in India.

-O.5R.28-of CPC- service of summons on soldiers, sailors, airmen.

- O.6R.17 of CPC- amendment of pleading - All applications  for amendment of pleading shall be signed and verified as required R.14/15 of O.6 of CPC -please see/peruse para 79 (chapter V) of Civil Manual.

-O.7R.10 of CPC-return of plaint-procedure - application.

-O.11R.2 of CPC -application for interrogatories, R 4 it's form, R 8,9 it's answer, form.

-O.11R.14 of CPC- order the production of documents by any party- document relating to matter in question.

-O.13R.2 of CPC- production of documents after settlement of issues.

-O.13R.10 of CPC- either send/call -record of suit -which is in other court.

-O.14R.5 of CPC- amend and strike out issues- at any time.

- O.16R.5,6- witness summons to give evidence/ production of document.

-O.16R.10 - procedure if witness fails to comply with summons.

-O.16A R.2,3 of CPC-witness summons to person who detained in prisons.

-O22R.2,3 of CPC - bringing legal heirs on record.

-O22R.4(4) of CPC- exemption to take Lrs on record.

- O23R.1 withdrawal of suit with or without permission to file fresh suit.

-O26 R.4/5/9/10A/10B/10C/11/13-commission for examination of person/ examination of person who reside out of India/local investigation/for scientific investigation/performance of ministerial act/ sale of movable property/examine or adjust accounts/partition of immovable property .

-O37R.3(5) of CPC- leave to defend in summary suit-within 10 days from service of summons for judgement.

- O39 R1(a) of CPC -any party to suit (plaintiff/defendant) can file T.I. application- if suit property is in danger/wasted/damaged/alienated/, wrongfully sold in execution.O39R1(b)(c)- plaintiff can can file T.I. application for protection of possession against defendant.

-O39R.2 of CPC- plaintiff may at any time after commencement of  suit,either before or after judgement may apply for T.I.

-O39R.4 of CPC- application for discharge, verify, set aside of injunction order.

O.39R.7 of CPC - application by any party for detention,peservation, inspection, etc of suit property.

-O40R.1 of CPC- Appointment of receiver.

-O.41R.5(2) of CPC-stay by court which passed the decree.

........Please comment and give suggestions....

Minor- Related Provision- Civil Suit

Order XXXII (32) of C.P.C. and Chapter XII(12)  of Civil Manual are relevant in respect of minor related provision
                                                          

                                                                    .



 - As per O.32 R. 1 - Minor to sue by next friend.              

 - As per R. 2- if suit on behalf of minor is instituted without next friend then  Plaint  to be taken off the file.                                                                                            

 - As per R. 2A- if suit is instituted on behalf of minor by his next friend then at any stage of suit -Court either its own motion or on application of other side -order the next friend to give security for payment of all costs incurred or likely to be incurred by other side (i.e.defendant/opponent).                                                      

 - As per R.3 of O. 32 of C. P. C.  and Para 289 of Civil Manual -if defendant/opponent is minor at the time of filling of suit then court shall appoint proper person to be guardian for suit/application-As per above provisions  it's duty of Plaintiff/Applicant to take necessary steps for appointment of Guardian.      

-As per R. 6 of above order next friend or guardian for the suit shall not without leave of court receive any money /movable property on behalf of my either by way of compromise /decree /order.                                  
 - As per R. 7 of above order no next friend / guardian for suit shall without leave of court enter into agreement /compromise on behalf of minor. As R. 7(1-A) application for leave shall  be accompanied by affidavit of next friend /guardian /certificate of pleader to the effect that agreement / compromise proposed is in his opinion for benefit of the minor.     

 - Retirement/ Removal of next friend please peruse R. 8 to 11 of above order.                                                          

 - Procedure provided in R. 12/13 of above order if minor attain majority.                                                           

 - Rules above of minor apply to person of Unsound Mind (except R. 2-A).                                                                        


 -As per S. 141 of C. P. C. -procedure provided in CPC in regards to suit shall be followed as far as it can be made applicable in all proceeding in any court of civil jurisdiction. So O. 32 is applicable to miscellaneous proceeding also.                                                                     
 - As per Article 60 of Limitation Act 1963- limitation of suit for setting aside transfer of property made by the guardian of ward (minor)  is 3 year- which begins -when the ward attains majority.                                        
 - As per S. 8 of Hindu Minority and Guardianship Act 1956- Natural Guardian shall not without permission of the court mortgage/charge/transfer by sale, gift, exchange, otherwise, any part of immovable property of the minor /lease of any part of property of minor for term exceeding 5 years or for term extending more than 1 year beyond the date on which minor will attain majority. Application for the said permission  be file in District Court as per S. 9 of Guardian and Wards Act 1890.While granting permission court ought to see necessity and advantage of the ward.                                                           

.........Please Comment and give Suggestions. 

Notice and Civil Suit

Before filling suit firstly we have to see whether notice is mandatory ......                                                                                                  

- As per S. 80 of C.P.C. two months notice is mandatory before  filling suit against Govt/Public Officer in respect of any act purporting to be done by him in his official capacity. Basically notice u/s 80 be disclose name, description, residence of plaintiff, cause of action, relief claimed by plaintiff .                                                     
- As per S. 80(2) of C. P. C. if in a suit urgent or immediate relief required to obtain then with leave of court without giving notice suit can be filled.                                                                                

-Once notice is issued u/s 80 then as per the said section there is no provision to dispense with remaining period of notice and give permission to file suit.                                                                    - -

-As per S. 180 of Maharashtra (Bombay)  Village Panchayat Act 1958 three months notice is mandatory before  filling suit against any member /officer /servant / agent of panchayat acting under it,anything in good faith done under this act /rules.                                  
- As per S. 280 of Maharashtra Zilla Parishad and Panchayat Samitis Act 1961 three months notice is mandatory before filling suit against any officer,servant ,person acting/working under order of Zelda Parishad /Panchayat Samiti.                                                          
- As per above sections (180/280) no notice is mandatory if suit is filled in respect of Future Action of above person, servant,  member,  operson,  officer,  or against Grampanachyat/Z.P./Panchayat Samiti. Here note that as like S. 80(2) of C. P. C. there is no provision to grant  permission  to file suit without giving notice under above sections  before filling suit .                                                                                                     
- As per S. 304 of Maharashtra Municipal Councils Nagarpanchayats  and  Industrial Townships Act 1965 one  months notice is mandatory before filling suit against council, cigarettes officer servant in respect of any act done by them according to the said act .But as per S. 304(4) no notice is mandatory before filling suit if suit is filled under S. 38 of Specific Relief Act 1963 (i. e. Suit for Perpetual Injunction) or under S. 96(1)(2) of the this  act.                              
- As per S. 55 of Maharashtra Agricultural Produce Marketing Act 1963 one months notice is mandatory before filling suit against any member servant officer of the market committee in respect of any act done by them according to the said act.                                                              
- As per S. 106 of Transfer of Property Act 1882 Six months notice for agricultural or manufacturing lease and fifteen days notice for other purpose lease is mandatory before filling suit against tenant for possession / arrears of rent in respect of property to which Transfer of Property Act applies.                                                                                               
- As per S. 164 of Maharashtra Co-operative Act 1960 two months notice is mandatory before filling suit against society any it's officer in respect of any act touching the business of the society.                                  
- As per S. 15 of Maharashtra Rent Act 1999 ninety days notice is mandatory before filling suit against tenant for possession on the ground of non payment of standard rent or permitted increases.       

- Except mandatory notice provided                                                  

- In fact no notice is mandatory /required before filling suit of Partition  / Redemption of Mortgage / Specific Performance / Injunction / Encroachment / Declaration of Title / Declaration of Status / Demarcation / Rectification of Document/ Compensation for Defamation .

Please Comment /Give Suggestions.....