LegalCrystal – Blog

TAGS: ILLEGITIMATE CHILD, Sec.16 OF HINDU MARRIAGE ACT, PROPERTY RIGHT, INTESTATE, BASTARD

WHO IS AN ILLEGITIMATE CHILD UNDER HINDU LAW? WHAT ARE HIS/HER PROPERTY RIGHTS?CAN AN ILLEGITIMATE CHILD FILE A SUIT FOR PARTITION? WHAT IS DYING INTESTATE?

[This is an excerpts from the citation 2008(6)AIR Kar R 267- a judgment delivered by the Hon’ble Justice N.Kumar of High Court of Karnataka ]

Marriage according to Hindu Law is holy union, it is not a contract but a ‘samskara’ or ‘sacrament,’ though polygamy was not permitted, a second marriage was allowed in a restricted sense and that too under stringent circumstances. And Monogamy was the rule and ethos of the Hindu society which rejected the second marriage altogether. The influence of religion in all marriage did not allow polygamy to become a part of Hindu culture. Therefore noting the various enactments which dealt with the marriage through out the length and breadth of this Country, it became necessary for the parliament to amend and codify the law relating to marriage among Hindus and that is how the enactment of Hindu Marriage Act 1955 was passed.

Though Prior to the Hindu Marriage Act 1955 there was no prohibition for a Hindu to have more than one wife, all the children born to the wives were treated as legitimate children and members of joint family or co-parcenery. Only a child born to concubine was treated as an illegitimate child. Each one of these legitimate children had a right to maintain a suit against their father for partition and separate possession of their legitimate share either in the joint family property or in the co-parcenery property.

After the passing of the Hindu Marriage Act 1955 a prohibition was imposed on the Hindus to enter into second marriage during the life time of the spouse. The personal law of Hindus to that extent ceases to have effect. The Act had over riding effect and the Personal Law of Hindus in so far as the marriage are concerned stood amended in terms of the Act. Therefore second marriage of a Hindu during the life time of the spouse is prohibited and such a marriage was declared as void. A son born to the said void marriage was deprived of a right under the Traditional Hindu Law because the provisions of the Act, excluded the application of personal law in this regard and under the Hindu Succession Act, 1956, for short hereinafter referred to as “Succession Act”, because he was not a legitimate son. The Parliament after noticing this injustice done to an illegitimate child for a folly of its parents thought of introducing Section 16 of the Act. It reads as under:

This article is based on the citation: 2007(6) AIR Kar R 151-judgement delivered by Hon’ble Justice N.Kumar of High Court of Karnataka wherein the Hon’ble Justice has threadbare the points with regard to distribution of excess profits by the Companies. For further detailed study , kindly refer the above citation.

When a Company prospers and earns profits it may do one of two things with the profits.  It may either distribute the profits by way of dividend among the shareholders or accumulate them. Ordinarily, these undistributed profits are employed in the business either in acquisition of fixed assets or as working capital and really represent an increase in the capital employed in the business. When these increase to a considerable extent, the issued capital of the company ceases to bear a true relation to the real capital employed in the business.  The company may, in such a case, decide to bring its issued capital into a true relationship with the capital actually employed in the business and may for that purpose capitalize its accumulated profits and issue fully paid up shares or debentures of a nominal value equal to the amount capitalize to its shareholders. These new shares or debentures are called as Bonus Shares or Bonus Debentures. They are not a gift from the company.  They are not issued gratuitously.  Their nominal value is paid in full by the capitalized profits or reserves of the company, which could otherwise have been distributed to the shareholders.

The Company may instead of issuing bonus shares, issue bonus debentures by capitalizing its accumulated profits. The accumulated profits which are capitalized remain in the coffers of the Company and no part of them actually goes into the pockets of the shareholders; the only change that takes place is that the accumulated profits which prior to capitalization were employed in the business as accumulated profits are thenceforth employed as part of the issued or loan capital of the Company according as the issue is of bonus shares or bonus debentures. The accumulated profits which might have been divided among the shareholders as dividend are impounded to increase the capital of Company and what the shareholders get is not any payment out of the accumulated profits but bonus shares or bonus debentures credited as fully paid-up. When such bonus shares or bonus debentures are issued, admittedly no money is paid by the shareholders for the bonus shares or bonus debentures issued to them.  There is no payment of the accumulated profits to the shareholders since no part of the accumulated profits is liberated to them.  The Company does not part with any of the accumulated profits nor do the shareholders receive any part of them.  But the accumulated profits are applied in paying up the capital sums which the shareholders would otherwise have had to contribute for the purchase of new shares or new debentures.

TEENS AND ADOLESCENTS, DON’T GET CARRIED AWAY BY THE PUB CULTURE WHICH IS EMERGING IN TODAY’S SOCIETY.

Dont play a part in eroding the great culture of respecting THE INSTITUTION OF MARRIAGE which is a strong foundation for a healthy and happy society.Imagine the conditions of those families which rely on the youth to support them.THIS IS DEFINITELY NOT A HEALTHY MOVE!

GIRLS BANK ON SATURDAY PILLS

[News you can use]

The Karnataka State Pharmacists Association sees a spike in sale of emergency contraceptive pills, with a three-fold increase on weekends and rise in college-going customers.  Pharmacists have even coined a name for it-‘Saturday tablet”!

The SAHAI helpline now receives many more calls from depressed pregnant adolescent girls!

WHERE DOES ALL THIS LEAD TO?

MAJOR INCREASE OF INCIDENCE IN SEXUALLY TRANSMITTED DISEASES(STD) LIKE HIV/AIDS, URINARY TRACT INFECTION, GENITAL INFECTION, HERPES AND CERVICAL CANCER.

EARLY SEXUAL RELATIONSHIP WITH MULTIPLE PARTNERS INCREASES RISK OF CERVICAL CANCER IN GIRLS AND INFECTION OF TESTICLES RESULTS IN INFERTILITY AMONG ADOLESCENT BOYS!

SAHAI Counsellor Anita Gracias says”Abortion is a social stigma.  Young girls who become victims of unplanned pregnancy out of wedlock feel suicidal and depressed.  Apart from the burden of pregnancy, being dumped by her partner is even more shocking.  These girls need moral and social support.  Education will play a significant role.

G Rekha, branch manager, Family Planning Association India, explains the rise in abortion cases.  Most of those who come for abortion are adolescent girls.  Often, they don’t consult doctors, and apply the knowledge gained by reading websites or advertisements.  They take abortion pills without following the proper protocol which results in incomplete abortion.  Frequent intake of emergency contraceptive pills also causes other gynaecological problems.  Girls are affected the most due to lack of sex education which is more about values and relationships.

Despite the rising numbers, the state is reluctant to introduce sex education in schools and colleges.  This is a huge worry as Karnataka is leading some neighbouring states in incidence of Sexually Transmitted Diseases, be it HIV or cervical cancer. Does the increasing number of abortions among adolescent girls serve as a warning?

Gynaecologist and sexologist Dr.Padmini Prasad observes:”We see young mothers bringing school-going daughters for abortion.  Due to lack of knowledge about their own bodies, girls have been unable to protect themselves and end up victims of sexual abuse and harassment. Repeated abortion scars the uterus.  Taking emergency pills without guidance causes many complications like hormonal imbalance and may affect the menstrual cycle”.

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MUSLIM MEN BE AWARE OF THE  RULES!

RELIGION BASED PERSONAL LAWS CANNOT BE INVOKED TO PREVENT GOVERNMENT RULES!

[ News you can use]

After 23 years in Court, a Muslim Constable’s plea that he did not fail afoul of a bigamy charge as this was permissible according to his religion, has been decisively quashed by the Supreme Court that dismissed his special leave petition against a high court ruling.

The Supreme Court decision not to entertain the special leave petition clearly establishes that those in government jobs cannot get around service rules that stipulate dismissal from service for bigamous employees.The Supreme Court said that religion based personal laws cannot be invoked to prevent government rules from being enforced.

The former Rajasthan Police Constable Liyakat Ali, challenged the termination of his services under the Rajasthan Civil Services (conduct)Rules 1971, banning second marriage without divorcing the first wife.

The Supreme Court last week upheld the High Court ruling against Ali on the ground that he had contracted a second marriage without divorcing his first wife. Ali’s contention was that Muslim personal law did not prohibit a second marriage even as the relation with first wife remained legally binding.

The law did not mandate taking permission of the government and Ali married Maksuda Khatun without divorcing his first wife Farida Khatun.

Though the dismissed Constable had taken a plea that he had divorced his first wife before contracting the marriage with Maksuda, the inquiry reportedly revealed that the first marriage had not been annulled when he married for the second time.

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WHAT IS ENCUMBRANCE ?

BEFORE PURCHASING PROPERTY OR ENTERING INTO LEASE AGREEMENT OR RENT AGREEMENT YOU SHOULD ENSURE THAT THERE ARE NO ENCUMBRANCES ON THE PROPERTY IN QUESTION!

Encumbrance means a liability which burdens the property, for example, lease, mortgage, easement, restriction, covenant, rent charge etc.  Encumbrances which can be carved out of ownership, generally are securities, leases, servitude‘s, trusts etc.  It is generally a burden or charge upon the property.

In the instant case: AIR 2007 Kerala 114 the Hon’ble High Court of Kerala [k.s.Radhakrishnan acting c.j. and justice Antony dominic] held that:

By virtue of Securitization Act there is no necessity of the Bank resorting to provisions of Rent Control Act for evicting the tenant.

The word encumbrance enumerated in Rule 9(9) of Securitisation Rules cannot be given a restricted meaning. As lease is an encumbrance over the property, In any view the borrower is bound by the terms and conditions stipulated in declaration executed by him in favor of Bank undertaken that he would not lease out the property.  Contrary to the said stipulation the tenant was put in possession and therefore by virtue of Securitization Act there is no necessity of the Bank resorting to provisions of Rent Control Act for evicting the tenant.  Securitisation Act has got overriding effect over the Kerala Buildings(Lease and Rent Control) Act and parties are governed by the Securitisation Act and not by the Rent Control Act.  The authorized officer is to deliver the property to the purchaser free from encumbrances in terms of Rule 9(9). Occupants are not to be physically dispossessed at the time of issuing notice under section 13.  The physical possession can be taken by the Bank by following the procedure laid down in Section 14 or after the sale is confirmed.

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Likewise the Lease,  Lease is therefore an encumbrance over the property.  In any view the borrower is bound by the terms and conditions stipulated in declaration executed by him in favor of Bank undertaken that he would not lease out the property.