LAW MADE EASY!

The Protection of Women from Domestic Violence Act, which came into existence from 26-10-2006, is a remarkable piece of legislation in the history of Independent India. It is considered as an achievement of various human rights activists and women's groups. Domestic Violence is a gender specific violence, directed against women, and it occurs within interpersonal relationships. The Act provides more effective protection of the rights of women guaranteed under the Indian Constitution, to victims of violence of any kind, occurring within the family. It treats domestic violence as a human rights issue. It aims to protect women from domestic violence and to prevent its occurrence in the society.

The phenomenon of Domestic Violence is widely prevalent in the society but has remained largely invisible. The Act provides the appointment of 'protection officers' and 'service providers' in addition to the usual machinery of police and courts to enforce the various provisions of the Act.

Section 3 of the Act defines Domestic Violence. Accordingly, any act, omission, commission or conduct of the person which harms or injures or endangers the health, safety, life, limb or well-being, whether manual or physical, of the aggrieved person, including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse shall constitute Domestic Violence. Further an act or omission which harasses, harms, injures, or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property constitutes domestic violence.

an act or omission, which has the effect of threatening the aggrieved woman, or any person related to her, constitutes domestic violence. The Act provides for registration of voluntary organizations as 'Service Providers" for the purpose of this Act. An aggrieved person may file an application to the jurisdictional Magistrate seeking various reliefs under the Act. The magistrate shall endeavor to dispose every application within a period of 60 days from the date of hearing.
An aggrieved woman has various reliefs and rights under the Act. Section 17 provides the right to reside in a shared household, whether or not, she has any right, title or beneficial interest in the same.

The Magistrate can pass various protection orders in favour of the aggrieved person prohibiting the respondent from committing acts of domestic violence, prohibiting entering the place of employment of the aggrieved person, prohibiting communication with the aggrieved person, prohibiting alienating assets, operating bank lockers used or held or enjoyed by both the parties etc. Other reliefs under this act include residence orders, monetary reliefs, custody orders, compensation orders, orders pertaining to the custody of children etc.

(For personal and confidential advice on any legal matter Sri Mento Isaac can be contacted on 26555453, 9845426225, Email: mentoisac@indiatimes.com or at his office at # 296, 32nd Main, 6th Phase, JP Nagar, B'lore-78)

SUCCESSION CERTIFICATE

A District Judge within whose jurisdiction a deceased person resided at the time of his death or within whose jurisdiction any part of his property was found may grant the Succession Certificate under the Indian Succession Act.

Application to the District Judge shall contain the details which include the time of the death of the deceased, the place of the residence of the deceased at the time of his death, details of the relatives of the deceased, right of the applicant in moving the application, the debts and securities in respect of which the certificate is applied for, etc.

After the District Judge is satisfied that there is a ground for entertaining the application, a hearing date is fixed and notices are served on concerned persons.

After hearing, if the District Judge decides that the right of Succession Certificate belongs to the applicant, the Judge shall make an order for the grant of certificate to him. The Judge may also grant a certificate to an applicant with a prima-facie best title, if he finds it difficult to determine in the ordinary manner.

A Succession Certificate can empower a person to receive interest or dividends, on securities and to negotiate or to transfer the securities of the deceased person.

(For personal and confidential advice on any legal matter Sri Mento Isaac can be contacted on 26555453, 9845426225, Email: mentoisac@indiatimes.com or at his office at # 296, 32nd Main, 6th Phase, JP Nagar, B'lore-78)

WRITS

Article 226 of the Indian Constitution confers upon the High Courts wide powers to issue orders and writs to any person or authority. Before a writ or an order is passed, the party approaching the court has to establish that he has a right and that right is illegally invaded or threatened. High court can issue writ and directions, to any Government, authority or person even beyond its territorial jurisdiction, if the cause of action partly arises within its territorial jurisdiction.

Wherever questions of facts are involved normally High Court does not exercise its power under Article 226.Similary when an alternative remedy is available to the petitioner, the Courts do not entertain petitions under Article 226. Also when there is an inordinate delay in approaching the court, the court may not give relief acting under this Article.

There are various types of Writs: - Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. Supreme Court under Article 32 of the Constitution can exercise similar powers.

The basic idea in conferring powers under Article 226 upon High Court is to see that the rule of law is maintained in the society. The executive authorities are to be corrected whenever they transgress the limits of their power and encroach upon the rights of the citizen. Violations of human rights, natural rights etc., are instances where the High courts interfere using this powerful article of the Constitution.

Section 9 of the Hindu marriage Act, 1955 provides for restitution of conjugal rights. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements, made in such petition, and that there is no legal ground, why the application should not be granted, may decree restitution of conjugal rights accordingly. The existence of a valid marriage is an essential requisite for a decree under this section. The burden of proof lies on the party, which seeks a decree for restitution of conjugal rights.

Failure to render conjugal duties, refusal to stay together or of marital intercourse with the other spouse, would normally constitute withdrawal from the society of the other spouse. If either of the parties has a reasonable excuse in withdrawing from the other's society, then a decree cannot be passed for restitution. What is a reasonable cause, would vary with time and circumstances, and will have to be determined by the court, in each individual case. Impotency of the husband affords a reasonable cause for the wife to stay away from him. Further cruelty, mental or physical, on the part of one spouse will be a reasonable excuse, for withdrawal from his or her society.

In Karnataka there are many restrictions on the holding or transfer of agricultural land by persons or families. No person who, or a family which has an annual income of not less than two lakhs rupees from sources other than agricultural lands shall be entitled to acquire any agricultural land, whether as landowner, landlord, tenant or as a mortgagee with possession or otherwise. For the purpose of calculating the annual income, the average annual income of five consecutive preceding years is taken into account. Any acquisition in violation of this rule is deemed to be null and void. Persons or families holding land in violation of this rule are supposed to file a declaration to the jurisdictional tahsildar, who shall forward the same to the Deputy Commissioner, who shall notify such lands as transferred to the state government.

Further, no person, other than a person cultivating land personally shall be entitled to hold agricultural land. However, educational, religious or charitable institution or society or trust of a public nature, capable of holding property, formed for an educational, religious or charitable purpose, can hold property when the income from the land is appropriated solely for the institution or the society or the trust concerned.

Similarly agricultural land cannot be sold, gifted, exchanged, leased or mortgaged (with possession) to a person who is not either an agriculturist or an agricultural laborer. However the jurisdictional Assistant Commissioner may grant permission to acquire land, to persons who bonafide intend to take up agriculture, provided the transferee takes up agriculture within one year from the date of acquisition.

Ownership of Apartments

Each apartment, together with its undivided interest in the common areas and facilities appurtenant to such apartment, is a heritable and transferable immovable property. An apartment owner may transfer his apartment and the percentage of the undivided interest in the common areas and facilities appurtenant to such apartments by way of sale, mortgage, gift, exchange etc.

Each apartment owner shall be entitled to the exclusive ownership and possession of his apartment. He shall execute a declaration that he submits his apartment to the provisions of the Karnataka Apartment ownership Act, 1972 and a Deed of Apartment.

Each apartment owner shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration. Such percentage is computed by taking as a basis the value of the apartment in relation to the value of the property. The percentage of the undivided interest of each apartment owner in the common areas and facilities shall have a permanent character and shall not be altered without the consent of all the apartment owners expressed in an amended declaration.

The common areas and facilities shall remain undivided and no apartment owner or any other person shall bring any action for partition or division of any part thereof. Each apartment owner may use the common areas and facilities in accordance with the purpose for which they were intended without hindering or encroaching upon the lawful rights of the other apartment owners.

RIGHT OF PRIVATE DEFENCE

Chapter IV of the Indian Penal Code, 1860 contains some interesting rights available to a citizen, from sections 96 to 106 under the caption, “Right of Private Defense”. This is an exceptional area where the law permits the victims to react, when they themselves or their fellow beings are subjected to an offence. In fact nothing is an offence under the eyes of law, which is done in the exercise of private defense.

Every person has a right, subject to few restrictions enumerated in section 99 IPC, to defend his own body and of any other person, against any offence affecting human body or to defend his or another person’s property where such property is subjected to offences of theft, robbery, mischief etc. The right of private defense of the body extends even to causing harm or death of the assailant, if the offence one faces, is that which causes a reasonable apprehension of death, rape, unnatural lust and kidnapping. In the cases of other lesser serious offences, the victim can cause reasonable harm to the assailant during the exercise of the right of private defense.

There are, however, few restrictions to the exercise of this valuable right. This right cannot be exercised against a public servant acting in good faith, under the color of his office, which does not cause a reasonable apprehension of death or grievous hurt, thought his act may not be strictly justifiable under law. Similarly, if there is sufficient time for the victim, to have recourse to the protection of authorities, then this right cannot be exercised. Also a person cannot inflict more harm on the assailant than that is necessary for the purpose of defense.

It is interesting to note that this right is available not only to victims of offence, but it also permits others to interfere if another person or property is subjected to an offence.

OFFENCE OF CHEQUE BOUNCING

Section 138 of the Negotiable Instruments Act 1881, was introduced in the year 1989 which made the dishonor of cheques, for various reasons, enumerated therein, a punishable offence. The present punishment is imprisonment for a term, which may extend to two years or with fine, which may extend to twice the amount of cheque, or with both.

A cheque needs to be presented within 6 months of the date of drawing, to the bank. After the cheque gets dishonored, the payee has to make a demand by giving a notice in writing to the drawer of the cheque, within 30 days of the receipt of information from the bank regarding the dishonor of the cheque. The payee need to wait for another 15 days after the said notice is served on the drawer to see whether the drawer is making the payment of the cheque amount. If, within 15 days, the drawer does not make the payment, the payee can file a complaint before the jurisdictional magistrate, within 30 days. It is interesting to note that such a complaint cannot be filed before the police authorities.

There are special courts in Bangalore to try cheque-bouncing cases. In addition to the criminal prosecution, a person can approach the civil court for the recovery of the money under the same cheque. Hence a person has double remedy under the law. In a prosecution for an offence of cheque dishonor, the defenses available to an accused are very limited. Most of the recent decisions of various High Courts and the Supreme Court are in favour of conviction in matters of Cheque bouncing.

ARE PARENTS ENTITLED FOR MAINTENANCE?

We hear about children claiming maintenance from their parents, wives seeking maintenance from their husbands, but it is very uncommon to have heard parents claiming maintenance from their children. In the present technology driven society where children fail to take care of their parents, this is a valuable right available to aged and infirm parents, which is found in Chapter 9 of The Code of Criminal Procedure, 1973.

A father or mother who is unable to maintain himself or herself, and who has a son or daughter who has sufficient means and who refuses or neglects to maintain his parents, may file a petition before a magistrate of the first class. The magistrate after such enquiry can order the son or daughter to make a monthly maintenance to his or her parent. Such maintenance has to be paid from the date of application or from the date of order as decided by the court.
If any person who is ordered to pay such a maintenance fails to comply with the said order, then the magistrate may issue a warrant for levying the amount due, or may even sentence the defaulter to simple imprisonment. It is pertinent to note that the parents need not to have given some assets or share of wealth to their children before they can enforce this right.
The proceedings are normally filed in the jurisdictional family court and may take on an average one to two years for the completion of the proceedings depending on the workload of the respective courts.

(For personal and confidential advice on any legal matter Sri Mento Isaac can be contacted on 26555453, 9845426225, Email: mentoisac@indiatimes.com or at his office at # 296, 32nd Main, 6th Phase, JP Nagar, B’lore-78)

ANTICIPATORY BAIL

The Code Of Criminal procedure 1973, provides the valuable right of Anticipatory Bail to a person who apprehends arrest in a non bailable offence. This power t enlarge a person on anticipatory bail is vested only in High Court and Court of Sessions. After a person is enlarged on anticipatory bail in connection with an offence, if an officer in charge of police station arrests him, then he shall be immediately released on bail and shall not be subjected to unnecessary restrains.

The Court granting anticipatory bail my impose few conditions like to be present for interrogation before the investigating officer, not to induce or threat witnesses, not to leave the country without the permission of the court etc. The pendency of investigation is not a ground to refuse anticipatory bail. Even after the summons is issued to an accused person from the court, he can be enlarged on anticipatory bail, if the court thinks fit. The anticipatory bail granted will continue till the conclusion of trail or its cancellation.

I is not compulsory that the FIR should be registered against a person or that his name shall be there in the FIR to be eligible for applying for anticipatory bail. What is required is that there should be a reasonable apprehension of arrest by the person applying. It can be filed at a place where the accused apprehends arrest.

POWER OF ARREST

A Police officer has the power to arrest any person without a warrant, (a) who has been concerned in a cognizable offence or against whom a reasonable complaint has been made (b) who has in his possession any, implement of house breaking, without lawful excuse,(c) who is a proclaimed offender (d) in whose possession stolen property is found (e) who obstructs a police officer in the execution of his duty, or who has escaped or attempts to escape from lawful custody and (f) who is a deserter from the armed forces of the Union.

When any person commits a non-cognizable offence in the presence of a police officer and refuses to gives his name and residence or gives a false name or residence, then he may be arrested by such officer in order to ascertain his name or residence.

A private person may arrest or cause to be arrested any person who in his presence commits a non bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.

If a person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, the police officer may use all means necessary to effect the arrest. However the police officer shall not cause of the death of a person, while trying to arrest, who is not accused of an offence punishable with death or with imprisonment for life.

TRANSFER OF SC/ST LANDS

The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain lands) Act, 1978 prohibits transfer of lands granted by the Government to persons belonging to the Schedule Castes and Schedule tribes in the state. The Object of the Act is to give effect to Directive principles of State Policy contained in Article 46 of the Constitution.

As per section 4 of the said Act, any transfer of granted lands made before or after the commencement of the said act, in contravention of the terms of the said grant shall be null and void and the transferee gets no right, title or interest in such land. However a transfer of granted land with the previous permission of the Government is perfectly legal. The Deputy Commissioner is the competent authority to give such permission. The word 'transfer' means and includes sale, gift, exchange, mortgage etc.

Transfer of granted land in breach of conditions of grant is void. Government is entitled to resume such land and restore it to grantee or his legal heirs. A transfer, even to an SC/ST person in violation of the conditions of grant is null and void.

The registrars are prohibited from registering the transfer of granted lands and the office of registrars are provided with a list of granted lands coming within their jurisdiction. The Act even provides for imprisonment, which may extend to 6 months or fine, which may extend to two thousand rupees or both for contravention of the provisions of the above act.

RESTRICTIONS ON HOLDING OR TRANSFER OF AGRICULTURAL LANDS

In Karnataka there are many restrictions on the holding or transfer of agricultural land by persons or families. No person who, or a family which, has an annual income of not less than two lakhs rupees from sources other than agricultural lands shall be entitled to acquire any agricultural land, whether as landowner, landlord, tenant or as a mortgagee with possession or otherwise. For the purpose of calculating the annual income, the average annual income of five consecutive preceding years is taken into account. Any acquisition in violation of this rule is deemed to be null and void. Persons or families holding land in violation of this rule are supposed to file a declaration to the jurisdictional tahsildar, who shall forward the same to the Deputy Commissioner, who shall notify such lands as transferred to the state government.

Further, no person, other than a person cultivating land personally shall be entitled to hold agricultural land. However, educational, religious or charitable institution or society or trust of a public nature, capable of holding property, formed for an educational, religious or charitable purpose, can hold property when the income from the land is appropriated solely for the institution or the society or the trust concerned.

Similarly agricultural land cannot be sold, gifted, exchanged, leased or mortgaged (with possession) to a person who is not either an agriculturist or an agricultural laborer. However the jurisdictional Assistant Commissioner may grant permission to acquire land, to persons who bonafide intend to take up agriculture, provided the transferee takes up agriculture within one year from the date of acquisition.

REGISTRATION OF MIDDLEMEN OR ESTATE AGENTS

The Karnataka Rent Act 1999 and Rules 2001 requires registration of middlemen, brokers or agents. The middleman or broker shall register his name with the Rent Controller of his area by filing an application in form 8 and paying a registration fee of Rs.200/- only. The Controller after scrutiny of the application issues a certificate of registration in Form No.9, which is valid for a period of 5Years, and the agent shall renew his registration after the said period. The renewal fee is Rs. 200/- .The said persons shall submit to the Rent Controller of the area a statement in the prescribed form showing their names, place of business and area of activity.

The middlemen or agent or broker shall within 10 days from the last day of each quarter of every calendar year, file return giving details of every transaction handled by him during the quarter, and the brokerage or commission received by him in each case.

Every middleman or Estate Agent who fails to register his name with the Rent Controller on conviction shall be punishable with fine up to two thousand rupees or with simple imprisonment for a term up to one month or both and also shall be liable to fine of rupees two hundred for each day of continuing default till he complies with law. Further every agent who fails to submit a statement as mentioned above shall on conviction be punishable with fine up to one thousand rupees or with simple imprisonment for a term up to one month.