1) What is a document to a property?
A document is a written form of one’s interest in the property. If suppose one person purchases a property he has to get it in writing form the person who wishes to sell the property. Only then he can become the owner of the property.
2) Why do we require a document for the property?
Property Document is the evidence of the transactions that takes place while purchasing a property or taking up a property in mortgage. Ordinarily there can not be any evidence against the contents of a document.
3) How many kinds of documents a property may have?
A property has 2 kinds of documents. They are
i) Title Document ii) Parent Documents
i)Title Document : Title Document is a document under which the owner of the property purchased it. When we purchase the property, the document under which we purchase would be the title document for us.
ii) Parent Documents: Parent Documents are those documents that shows the history of the property and the genuineness of the sellers ownership over the property.
4) What particulars does a document contain?
The document should specify the date on which the document is written and signed, the consideration for the transfer of right in the property, complete details of the seller and purchaser and other terms and conditions mutually agreed upon.
5) What is a transfer of Right in a property?
A transfer of Right means a change in the ownership or the usage of the property. A transfer occurs when a property is mortgaged, gifted, sold or partitioned or subjected to performance of any obligation by an other person, each of these events have their own unique features imparting certain restriction on the owner of the property and therefore have specific terms and conditions to be agreed upon mutually.
6) When a property is sold to whom holds the property Document?
It depends upon the extent of the sale. If the whole property is sold then the purchasor has the Right to hold the parent documents. If only a portion is sold, the seller holds the documents. If a property is sold in several portions to different purchases then the holder of the portion of larger value holds the documents.
Tuesday, June 26, 2007
ADR system in India
Though the Alternate Dispute Resolution system have gained momentum only in the recent years that to specifically said to be the resultant of globalisation and liberelisation, the System was very much present and well organized in the Ancient Indian Legal System more particularly the Hindu law.
1. Who conducted the Arbitration Proceedings in Ancient India?
There were systemised hierarchical boards to decide the disputes. There were also Panchayats which functioned as subordinate authorities to the regular Courts and their decisions were binding as a decision of a Court of Law.
2. How were these boards named?
Kula the groups of persons bound by family ties. Sreni or Assemblies of tradesmen and artisans belonging to different tribes but connected in some way with each other. Puga or a Board of persons belonging to different sects and tribes but residing in the same locality;
The decision of Kula or Kinsman was subject to revision by Sreni which in turn could be revised by the Puga. From the decision of the Puga, appeal was maintainable to Pradvivaca and finally to the sovereign, and prince.
3. How advantageous was the Panchayat system?
The advantage of this system lay in its location. In a rural settings it was difficult for a witness to conceal the truth before his co- villagers, Panchayats, however, were often influenced by local sentiments and factions and thereby became susceptible to prejudice and bias. Harsh and unfair decisions of village Panchayats relating to caste matters are notorious. The simple and informal system of arbitration through panchayats though useful was ineffective to deal with the complexities arising out of the social and economic changes.
4. How did Panchayats evolved to its present position.
The system of Alternate dispute redressal was found not only as a convenient procedure but was also seen as a politically safe and significant in the days of British/ Company Raj. Hence, There were several regulations and legislation that were brought in resulting considerable changes from 1772. Few among them are:
Bengal Regulations - The regulation of 1781 contained a provision that “the judge do recommend, and so far as he can without compulsion, prevail upon the parties to submit to the arbitration of one person to be mutually agreed upon by the parties.” And that “no award of any arbitrator of arbitrators, can be set aside, except upon full proof made by oath of the credible witness that arbitrators have been guilty of gross corruption or partiality to the cause in which they had made their awards.”
The Regulation of 1787 empowered the court to refer suits to arbitration with the consent of parties.
The Regulation of 1793 authorised the court to promote references of cases not exceeding Rs. 200 in value to arbitration and disputes relating to partnership account, debts, disputed bargain and breach of contract. The procedure for conducting the arbitration proceedings was also stipulated.
In 1795, the regulation of 1793 was extended to Benaras and the regulation of 1802, 1814, 1822 and 1883 extended the limits and jurisdiction of arbitration proceedings in various ways.
Madras Presidency Regulation VII of 1816 authorised the Districts Munsiffs to convene districts panchayats for the determination of Civil Suits relating to real and personal property. The Regulation was repealed by Act VII of 1870.
Bombay Presidency Regulation VII of 1827 provided for arbitration of civil disputes. The arbitration had to be in writing to a named arbitrator, wherein the time for making the award had to be mentioned.
Under the Charter Act of 1833 the Legislative Council for India was established in 1834 It Passed Act IX of 1840. But the aforesaid Regulations of Bengal, Madras and Bombay continued to operate till 1859.
The Act VIII of 1857 codified the procedure of Civil Courts except those established by the Royal Charter. Sections 312 to 325 dealt with arbitration in suits. Sections 326 and 327 provided for arbitration without the intervention of the court. The Act VIII of 1857 was replaced by Act X of 1877.
The Code of Civil Procedure was revised in the year 1882 and by the Act XIV of 1882 the provisions relating to arbitration were reproduced verbatim in sections 506 to 526. No change in the law of arbitration was effected by the said acts of 1877 and 1882.
The Indian Arbitration Act IX of 1899 was based on the English Arbitration Act of 1889. Act IX of 1899. It was the first substantive law on the subject of arbitration but its application was limited to the Presidency – towns of Calcutta, Bombay and Madras. Act, however suffered from many defects and was subjected to severe judicial criticisms.
In 1908 the Code of Civil Procedure was re-enacted. The Code made no substantial changes in the law of arbitration.
The Arbitration Act of 1940 was enacted replacing the Indian Arbitration Act of 1899 and section 89 and clauses (a) to (f) of section 104(1) and the Second Schedule of the Code of Civil procedure 1908. It amended and consolidated the law relating to arbitration in British India and remained a comprehensive law on Arbitration even in the Republican India until 1996.
The changing international Political and Economic situations emphasised need for further changes in the lawand thereby The Arbitration and Conciliation Act, 1996 was passed. This was particularly guided by the UNCITRAL Model Law, 1985 and the UNCITRAL Conciliation Rules, 1980.
5. What is Arbitration?
The law lexicon by N.M. Mulchandani, defines Arbitration as The hearing and determining of a dispute between parties by persons chosen or agreed to by them.
6. What is conciliation?
Conciliation is a process of facilitating an amicable settlement between the parties. Unlike the Arbitration there is no determination of a dispute. There need not be a prior agreement and it cannot be forced on a party not intending for conciliation.
7. When can an Arbitrator be appointed?
An Arbitrator can be appointed if there is a written agreement by the contracting parties either as a separate agreement or as one of the clause in the main contract. There can be an agreement by exchange of letters or any other mode of communication which can be recorded.
8. Who appoints an Arbitrator?
Either party to a dispute can appoint an arbitrator. If there is an agreement for appointment of an Arbitrator for settlement of dispute and one party do not agrees to refer the matter for Arbitration then the party willing to refer the matter to Arbitration can approach the Chief Justice of the concerned High Court for appointment of an Arbitrator. When there is a dispute in the performance of a contract in which there is a clause for reference to Arbitration and one party ignores the arbitration clause and proceeds with a civil suit before a judicial authority then the other party if prefers to refer the matter to Arbitration can apply to the same court before he files his defence statement for referring the matter to the Arbitration.
9. Who and How many Arbitrators can be appointed to resolve a dispute?
Person of any nationality can be appointed as an Arbitrator but he should possess necessary qualification to understand the nature of dispute. An Arbitrator need not be a graduate in law. The parties to the contract can agree on the number of Arbitrators. But the condition is that it should be an odd number.
10. Can we challenge the appointment of an Arbitrator?
Yes, if we can prove that he is not qualified to handle that particular dispute or if we could show that he is interested in deciding the dispute in favour of either of the parties his appointment can be challenged. The objections should be raised before the same Arbitrator within 15 days of his appointment or within 15 days from the date on which we come to know the existence of either of these conditions. The Arbitrator would himself decide his jurisdiction.
11. Can an Arbitrator pass an interim order?
Yes, he can pass an interim order, direct to produce sureties and even appoint an expert committee to deal with specific issues if necessary.
12. Is there any Appeal against the award of the Arbitrator?
There is an appeal against the grant or refusal of interim measures, on issues relating to the Jurisdiction of the Arbitrator and on determination of the issue relating to scope of Arbitration. Appeal is also allowed against the Order in the Application to set aside the Arbitral Award.
13. When can an Arbitral Award be set aside?
If it can be proved that the Arbitration Agreement is not valid under the law or the party preferring to set aside the Arbitral Award was prevented by some justifiable reasons from presenting his case or that the Award was beyond the scope of submission to dispute or either the composition of the Arbitral tribunal or the procedures of the Tribunal was different from what has been agreed by the parties.
1. Who conducted the Arbitration Proceedings in Ancient India?
There were systemised hierarchical boards to decide the disputes. There were also Panchayats which functioned as subordinate authorities to the regular Courts and their decisions were binding as a decision of a Court of Law.
2. How were these boards named?
Kula the groups of persons bound by family ties. Sreni or Assemblies of tradesmen and artisans belonging to different tribes but connected in some way with each other. Puga or a Board of persons belonging to different sects and tribes but residing in the same locality;
The decision of Kula or Kinsman was subject to revision by Sreni which in turn could be revised by the Puga. From the decision of the Puga, appeal was maintainable to Pradvivaca and finally to the sovereign, and prince.
3. How advantageous was the Panchayat system?
The advantage of this system lay in its location. In a rural settings it was difficult for a witness to conceal the truth before his co- villagers, Panchayats, however, were often influenced by local sentiments and factions and thereby became susceptible to prejudice and bias. Harsh and unfair decisions of village Panchayats relating to caste matters are notorious. The simple and informal system of arbitration through panchayats though useful was ineffective to deal with the complexities arising out of the social and economic changes.
4. How did Panchayats evolved to its present position.
The system of Alternate dispute redressal was found not only as a convenient procedure but was also seen as a politically safe and significant in the days of British/ Company Raj. Hence, There were several regulations and legislation that were brought in resulting considerable changes from 1772. Few among them are:
Bengal Regulations - The regulation of 1781 contained a provision that “the judge do recommend, and so far as he can without compulsion, prevail upon the parties to submit to the arbitration of one person to be mutually agreed upon by the parties.” And that “no award of any arbitrator of arbitrators, can be set aside, except upon full proof made by oath of the credible witness that arbitrators have been guilty of gross corruption or partiality to the cause in which they had made their awards.”
The Regulation of 1787 empowered the court to refer suits to arbitration with the consent of parties.
The Regulation of 1793 authorised the court to promote references of cases not exceeding Rs. 200 in value to arbitration and disputes relating to partnership account, debts, disputed bargain and breach of contract. The procedure for conducting the arbitration proceedings was also stipulated.
In 1795, the regulation of 1793 was extended to Benaras and the regulation of 1802, 1814, 1822 and 1883 extended the limits and jurisdiction of arbitration proceedings in various ways.
Madras Presidency Regulation VII of 1816 authorised the Districts Munsiffs to convene districts panchayats for the determination of Civil Suits relating to real and personal property. The Regulation was repealed by Act VII of 1870.
Bombay Presidency Regulation VII of 1827 provided for arbitration of civil disputes. The arbitration had to be in writing to a named arbitrator, wherein the time for making the award had to be mentioned.
Under the Charter Act of 1833 the Legislative Council for India was established in 1834 It Passed Act IX of 1840. But the aforesaid Regulations of Bengal, Madras and Bombay continued to operate till 1859.
The Act VIII of 1857 codified the procedure of Civil Courts except those established by the Royal Charter. Sections 312 to 325 dealt with arbitration in suits. Sections 326 and 327 provided for arbitration without the intervention of the court. The Act VIII of 1857 was replaced by Act X of 1877.
The Code of Civil Procedure was revised in the year 1882 and by the Act XIV of 1882 the provisions relating to arbitration were reproduced verbatim in sections 506 to 526. No change in the law of arbitration was effected by the said acts of 1877 and 1882.
The Indian Arbitration Act IX of 1899 was based on the English Arbitration Act of 1889. Act IX of 1899. It was the first substantive law on the subject of arbitration but its application was limited to the Presidency – towns of Calcutta, Bombay and Madras. Act, however suffered from many defects and was subjected to severe judicial criticisms.
In 1908 the Code of Civil Procedure was re-enacted. The Code made no substantial changes in the law of arbitration.
The Arbitration Act of 1940 was enacted replacing the Indian Arbitration Act of 1899 and section 89 and clauses (a) to (f) of section 104(1) and the Second Schedule of the Code of Civil procedure 1908. It amended and consolidated the law relating to arbitration in British India and remained a comprehensive law on Arbitration even in the Republican India until 1996.
The changing international Political and Economic situations emphasised need for further changes in the lawand thereby The Arbitration and Conciliation Act, 1996 was passed. This was particularly guided by the UNCITRAL Model Law, 1985 and the UNCITRAL Conciliation Rules, 1980.
5. What is Arbitration?
The law lexicon by N.M. Mulchandani, defines Arbitration as The hearing and determining of a dispute between parties by persons chosen or agreed to by them.
6. What is conciliation?
Conciliation is a process of facilitating an amicable settlement between the parties. Unlike the Arbitration there is no determination of a dispute. There need not be a prior agreement and it cannot be forced on a party not intending for conciliation.
7. When can an Arbitrator be appointed?
An Arbitrator can be appointed if there is a written agreement by the contracting parties either as a separate agreement or as one of the clause in the main contract. There can be an agreement by exchange of letters or any other mode of communication which can be recorded.
8. Who appoints an Arbitrator?
Either party to a dispute can appoint an arbitrator. If there is an agreement for appointment of an Arbitrator for settlement of dispute and one party do not agrees to refer the matter for Arbitration then the party willing to refer the matter to Arbitration can approach the Chief Justice of the concerned High Court for appointment of an Arbitrator. When there is a dispute in the performance of a contract in which there is a clause for reference to Arbitration and one party ignores the arbitration clause and proceeds with a civil suit before a judicial authority then the other party if prefers to refer the matter to Arbitration can apply to the same court before he files his defence statement for referring the matter to the Arbitration.
9. Who and How many Arbitrators can be appointed to resolve a dispute?
Person of any nationality can be appointed as an Arbitrator but he should possess necessary qualification to understand the nature of dispute. An Arbitrator need not be a graduate in law. The parties to the contract can agree on the number of Arbitrators. But the condition is that it should be an odd number.
10. Can we challenge the appointment of an Arbitrator?
Yes, if we can prove that he is not qualified to handle that particular dispute or if we could show that he is interested in deciding the dispute in favour of either of the parties his appointment can be challenged. The objections should be raised before the same Arbitrator within 15 days of his appointment or within 15 days from the date on which we come to know the existence of either of these conditions. The Arbitrator would himself decide his jurisdiction.
11. Can an Arbitrator pass an interim order?
Yes, he can pass an interim order, direct to produce sureties and even appoint an expert committee to deal with specific issues if necessary.
12. Is there any Appeal against the award of the Arbitrator?
There is an appeal against the grant or refusal of interim measures, on issues relating to the Jurisdiction of the Arbitrator and on determination of the issue relating to scope of Arbitration. Appeal is also allowed against the Order in the Application to set aside the Arbitral Award.
13. When can an Arbitral Award be set aside?
If it can be proved that the Arbitration Agreement is not valid under the law or the party preferring to set aside the Arbitral Award was prevented by some justifiable reasons from presenting his case or that the Award was beyond the scope of submission to dispute or either the composition of the Arbitral tribunal or the procedures of the Tribunal was different from what has been agreed by the parties.
Mental Health Act and Guardian Ship
The Mental Health Act was passed in the year 1987. The scope of the Act is to regulate the treatment and care of the mentally ill person. It also provides measures for the better management of their property and affairs and other incidental masters. This Act Repeals The Indian Lunacy Act, 1912 and the Lunacy Act, 1977. Chapter VI of the Act provides for the procedure to appoint a guardian to look after the mentally ill person and a manager to look after his properties.
1. Who appoints a guardian for a mentally ill person.
If the mentally ill person cannot look after himself, then the District Court will appoint a guardian to take care of him. If the District Collector has already been directed by the District court to take care of the properties of the mentally ill person then the District Collector shall appointed a guardian took look after the person also.(S.53)
property by himself it shall be taken charge by a court of ward. For this the District Court shall pass suitable directions.
2. Who will appoint a manager to a look after a mentally ill person’s property:
If a particular land can be taken care of by the Court of Wards then the District Collector shall direct the court of ward to take charge of the mentally ill person’s property. When such property cannot be given to the care of the court of wards then the district judge with the consultation of the collector shall issue suitable directions to the him for taking charge of the property and person of the mentally ill person and there after the District collector shall appoint a manager. In doing so the state government shall monitor his work.(S.54)
3. Who can file an application for a judicial inquisition on the mental condition of an alleged mentally ill person.
i) Any of his relatives (or)
ii) A public curator appointed under the Indian Succession Act,1925 (or)
iii) The Advocate General of the State in which the alleged mentally ill
person resides (or)
iv) The district collector.(S.50)
Procedures for in quest :- (S.50)
On receipt of an application the District Court shall, send a notice on the alleged mentally ill person to appear before it, or send a notice on the person having the custody of the alleged mentally ill person to produce such person before it, for being examined
If the alleged mentally ill person is a woman, who according to the custom prevailing in the area where she resides or according to the religion to which she belongs, ought not to be compelled to appear in public, the District Court may appoint A commissioner as provided in the Code of Civil Procedure, 1908.
For the purpose of conducting the inquisition applied for, the District Court may appoint two or more persons to act as assessors.
4. On what points will a district court conduct an enquiry: (S.51)
(i) Whether the alleged mentally ill person is in fact mentally ill or not,
(ii) Whether he is incapable of taking care of himself and of managing his property, or incapable of managing his property only.
5.What are the necessary conditions for a person to qualify for being appointed as a manager or Gaurdian.
i) The District Court or, the collector should considers that such appointment is for the benefit of the mentally ill person.
ii) Such person should enter into a bond for a value with such sureties that the appointing authority, may specify to account for all receipts from the property of the mentally ill person.
6. who will fix the remuneration of guardians and managers:-
(1) The appointing authority may determine their salary and allowances and it shall be paid, from out of the property of the mentally ill person,
7. What are duties of guardian and manager:-
(1) They shall be responsible for the care and maintenance of the mentally ill person or his property, or of both and of such members of his family as are dependent on him.
(2) Where the person appointed as guardian of a mentally ill person is different from the person appointed as the manager of his property, the manager shall pay to the guardian for his salary, allowance, for the maintenance of the mentally ill person and of such members of his family as are dependent on him.
(3) Manager appointed under this Act shall within a period of six months from the date of his appointment deliver to the authority, which appointed him an inventory of the immovable property belonging to the mentally ill person and of all assets and other movable property received on behalf of the mentally ill person, together with a statement of all claims due to and all debts and liabilities due by, such mentally ill person.
(4) Furnish to the appointing authority within a period of three months of the close of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the mentally ill person and the balance remaining with him.
(5) The manager shall act in the same manner as the mentally ill person would have acted if such person had not become mentally ill. Manager shall realise all claims due to the estate of the mentally ill person and pay all debts and discharges all liabilities legally due from that estate:
(6) The manager shall not mortgage, create any charge on, or, transfer by sale, gift, exchange or otherwise any immovable property of the mentally ill person or lease out any such property for a period exceeding five years, unless he obtains the permission of the District Court.
(7) The District Court may, on an application made by the manager, grant him permission under conditions it may think proper in each circumstances. Before granting permission it may send notice to all the relatives and friends of the mentally ill person and here their objections.
(8) Whether the manager assumes responsibilities on contracts entered by the mentally ill person befor becoming ill;
Yes , Even then he should get suitable directions and permission from the district court.
1. Who appoints a guardian for a mentally ill person.
If the mentally ill person cannot look after himself, then the District Court will appoint a guardian to take care of him. If the District Collector has already been directed by the District court to take care of the properties of the mentally ill person then the District Collector shall appointed a guardian took look after the person also.(S.53)
property by himself it shall be taken charge by a court of ward. For this the District Court shall pass suitable directions.
2. Who will appoint a manager to a look after a mentally ill person’s property:
If a particular land can be taken care of by the Court of Wards then the District Collector shall direct the court of ward to take charge of the mentally ill person’s property. When such property cannot be given to the care of the court of wards then the district judge with the consultation of the collector shall issue suitable directions to the him for taking charge of the property and person of the mentally ill person and there after the District collector shall appoint a manager. In doing so the state government shall monitor his work.(S.54)
3. Who can file an application for a judicial inquisition on the mental condition of an alleged mentally ill person.
i) Any of his relatives (or)
ii) A public curator appointed under the Indian Succession Act,1925 (or)
iii) The Advocate General of the State in which the alleged mentally ill
person resides (or)
iv) The district collector.(S.50)
Procedures for in quest :- (S.50)
On receipt of an application the District Court shall, send a notice on the alleged mentally ill person to appear before it, or send a notice on the person having the custody of the alleged mentally ill person to produce such person before it, for being examined
If the alleged mentally ill person is a woman, who according to the custom prevailing in the area where she resides or according to the religion to which she belongs, ought not to be compelled to appear in public, the District Court may appoint A commissioner as provided in the Code of Civil Procedure, 1908.
For the purpose of conducting the inquisition applied for, the District Court may appoint two or more persons to act as assessors.
4. On what points will a district court conduct an enquiry: (S.51)
(i) Whether the alleged mentally ill person is in fact mentally ill or not,
(ii) Whether he is incapable of taking care of himself and of managing his property, or incapable of managing his property only.
5.What are the necessary conditions for a person to qualify for being appointed as a manager or Gaurdian.
i) The District Court or, the collector should considers that such appointment is for the benefit of the mentally ill person.
ii) Such person should enter into a bond for a value with such sureties that the appointing authority, may specify to account for all receipts from the property of the mentally ill person.
6. who will fix the remuneration of guardians and managers:-
(1) The appointing authority may determine their salary and allowances and it shall be paid, from out of the property of the mentally ill person,
7. What are duties of guardian and manager:-
(1) They shall be responsible for the care and maintenance of the mentally ill person or his property, or of both and of such members of his family as are dependent on him.
(2) Where the person appointed as guardian of a mentally ill person is different from the person appointed as the manager of his property, the manager shall pay to the guardian for his salary, allowance, for the maintenance of the mentally ill person and of such members of his family as are dependent on him.
(3) Manager appointed under this Act shall within a period of six months from the date of his appointment deliver to the authority, which appointed him an inventory of the immovable property belonging to the mentally ill person and of all assets and other movable property received on behalf of the mentally ill person, together with a statement of all claims due to and all debts and liabilities due by, such mentally ill person.
(4) Furnish to the appointing authority within a period of three months of the close of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the mentally ill person and the balance remaining with him.
(5) The manager shall act in the same manner as the mentally ill person would have acted if such person had not become mentally ill. Manager shall realise all claims due to the estate of the mentally ill person and pay all debts and discharges all liabilities legally due from that estate:
(6) The manager shall not mortgage, create any charge on, or, transfer by sale, gift, exchange or otherwise any immovable property of the mentally ill person or lease out any such property for a period exceeding five years, unless he obtains the permission of the District Court.
(7) The District Court may, on an application made by the manager, grant him permission under conditions it may think proper in each circumstances. Before granting permission it may send notice to all the relatives and friends of the mentally ill person and here their objections.
(8) Whether the manager assumes responsibilities on contracts entered by the mentally ill person befor becoming ill;
Yes , Even then he should get suitable directions and permission from the district court.
adoption
Law of adoption relating to Hindus
Adoption among the Hindu is governed under the Hindu adoptions and maintenance Act, 1956. Muslims, Christians, Passions Jews are not governed by this Act, and hence when they either wish to give in adoption or take in adoption shall have to look into laws which govern their respective religious and personnel affairs. Further, It is pertinent to note that the term Hindu has not been defined precisely in any of the Personal laws of the Hindu and neither is there any definition or conditions qualifying a person to the a Hindu in the Religious tenants and customs. The law only gives a wider and inclusive categories of persons who may be called as a Hindu and only fetter is that such person shall not be a Muslim, Christian, Parsi or a Jew . Hence if it is for sore that a child does not belong to either of there religions then we can solely conduce that the child is a Hindu. – Then -
Questions:
1. Who is a Hindu?
Any person, who is a Hindu by religion in any of its forms or developments, including a veerashiva, a lingayat or a follower of the Bramho, Prathana, or Arya Samaj, or who is a Buddhist, Jaina or sikh or any other person not being a Muslim, Christian, Parsi or a Jew will be taken as a Hindu.
2. In case of children how can we fix their religion if there parents belong to different religion?
In such case either of the parent (mother or father) should be a Hindu and the child should have been brought up as a Hindu. Then the child will also be regarded as a Hindu.
3. How can a child in a child care Institution be identified as a Hindu?
An only criterion is to see that whether the child is brought up as a Hindu.
4. What is Adoption?
The Tamil Nadu rules framed under the Juvenile Justice Act, defines adoption as the “the transfer of rights and responsibilities of a child from its birth parents to adoptive parents.”
5. How can a child be given in adoption legally and validly?
Who ever wisher to give a child in adoption must be assured that he / she / they have the capacity to give the child in adoption. The person who offers to take the child in adoption should also posses the capacity and Right to take the child in adoption. It should also be ensured that the person being given in adoption is capable of being adopted.
6. What are the conditions for a Male Hindu to take a child in adoption?
A male Hindu who wishes to take a child in adoption should have completed 18 years of age and he should be able to understand the seriousness and consequences of things he does. If he is a Married person he should take the consent of his wife. The consent of his wife can be dispensed with only if it is shown that the wife has converted her religion and does not continue as a Hindu, renounced the world or has been declared by a component Court as to have become insane. If it appear that a person has morethan one wife living at the time of adoption he should take the consent of all his wife. If he is taking a female child in adoption, he should be 21 years older in age.
7. What are the conditions of a female Hindu to take in adoption ?
She should be above the age of 18 years, and should be able to understand the seriousness and consequences of things she does. She should be 21 years older to the child if she adopts a male child.
8. Can married women take a child in adoption?
No., a married woman cannot take a child in adoption. But if her marriage has been dissolved by a competent court or her husband has renounced the would or if she has become a widow or if the husband has converted his religion and does not continue as a Hindu or has been declared by s county law to be of an sound mind then she can adopt a child.
9. Are there any other conditions applicable in general?
Yes, a part from this, a child can be taken in adoption only as a son or daughter. If a son is being adopted, the adoptive father or mother by whom the adoption is made must not have a Hindu son, grand son or great grand son living at the time of adoption. If a daughter is adopted, the adoptive father or mother must not have a daughter or grand daughter living at the time of adoption. Some child cannot be adopted by 2 or more persons.
10. Who can be adopted?
Any person who is a Hindu, not completed fifteen years of age and not married can be adopted. How ever, if the custom and usage of the parties to the adoption permits, a person above the age of 15 or who has been married can be adopted.
11. Who can give a child in adoption?
It is either the father or mother or the guardian of the child. It father is alive he alone can give the child in adoption unless he has renounced the world finally unless he was declared insane by the court. How ever he cannot give the child in adoption without the consent of the wife. The consent of the wife can be dispensed on the same grounds. The guardian of the child can give in adoption if both the biological parents are either not alive or their identify is not known. In such case the permission of the court is necessary.
12. Who can be called as a guardian?
A person who has the care of the child or both the child and its property is a guardian of the child. Such guardian may be a one who is appointed by a will of the child’s father or mother or one who is appointed by or declared by a district court.
13. Should religious ceremonies be preformed to validate adoption? - No
14. How an adoption is effected?
Adoption is usually recorded by a Deed of adoption and registered. Sometimes it is done either thro religious ceremonies on thro family arrangements.
15. Does the law requires the adoption to be registered?
No. Law does not compel the registration of adoption. But since an adoption results in changing the course of succession depriving wives and daughters of their rights and transferring the properties to comparatively strangers or more remote relations it is necessary that the evidence to support it be such that it is fro from all suspicion of fraud and so consistent and probable as to leave no occasion for doubling its truth. Hence registration is advisable as mandatory.
16. What are the consequences of an adoption?
An adopted child should be deemed to be the child of his or her adoptive parents for all purposes with effect from the date of adoption and from such date all his or her ties with the family of his birth gets reserved. How ever the child cannot marry any person Whom he or she could not have married if he or she had continued in the original family. The property which were entitlement of the child should continue to be its entitlement subject to the obligation attached to the property. The adoption shall not affect the rights of the relatives of the adopting parents in their share in the property.
Adoption under the Juvenile Justice Act.
The Juvenile Justice Act acknowledges that the primary responsibility for providing care and protection to children shall be that of their family and therefore views adoption as one among the measures to rehabilitate and reintegrate a child who are orphaned, abandoned neglected and abused thro institutional and non-institutional methods.
The Juvenile Justice Act is a secular legislation made in the lines of UNCRC and shall apply to all children who are coming within its purview irrespective of religion, caste or creed. In the light of section 41(3) of the Act, The Juvenile Justice Board is deemed to be the guardian of such children and it shall give in adoption keeping in mind various guidelines issued by the it State Government and Supreme Court from time to time.
This would obviously imply that though the religion of the child may not be material at the time of adoption the religious and personal laws of the adopting parents cannot be ignored as it relies on the capacity of the adopting parents to take the child in adoption. The Juvenile Justice Act, has ruled out several restrictions on adoptions. Under the Act the Board may allow a child to be given in adoption to a single parent and to adopt a child of same gender irrespective of the number of living bio logical son’s or daughters. Child may also be given in adoption to fit persons and fit institutions on the suitable directions.
Adoption among the Hindu is governed under the Hindu adoptions and maintenance Act, 1956. Muslims, Christians, Passions Jews are not governed by this Act, and hence when they either wish to give in adoption or take in adoption shall have to look into laws which govern their respective religious and personnel affairs. Further, It is pertinent to note that the term Hindu has not been defined precisely in any of the Personal laws of the Hindu and neither is there any definition or conditions qualifying a person to the a Hindu in the Religious tenants and customs. The law only gives a wider and inclusive categories of persons who may be called as a Hindu and only fetter is that such person shall not be a Muslim, Christian, Parsi or a Jew . Hence if it is for sore that a child does not belong to either of there religions then we can solely conduce that the child is a Hindu. – Then -
Questions:
1. Who is a Hindu?
Any person, who is a Hindu by religion in any of its forms or developments, including a veerashiva, a lingayat or a follower of the Bramho, Prathana, or Arya Samaj, or who is a Buddhist, Jaina or sikh or any other person not being a Muslim, Christian, Parsi or a Jew will be taken as a Hindu.
2. In case of children how can we fix their religion if there parents belong to different religion?
In such case either of the parent (mother or father) should be a Hindu and the child should have been brought up as a Hindu. Then the child will also be regarded as a Hindu.
3. How can a child in a child care Institution be identified as a Hindu?
An only criterion is to see that whether the child is brought up as a Hindu.
4. What is Adoption?
The Tamil Nadu rules framed under the Juvenile Justice Act, defines adoption as the “the transfer of rights and responsibilities of a child from its birth parents to adoptive parents.”
5. How can a child be given in adoption legally and validly?
Who ever wisher to give a child in adoption must be assured that he / she / they have the capacity to give the child in adoption. The person who offers to take the child in adoption should also posses the capacity and Right to take the child in adoption. It should also be ensured that the person being given in adoption is capable of being adopted.
6. What are the conditions for a Male Hindu to take a child in adoption?
A male Hindu who wishes to take a child in adoption should have completed 18 years of age and he should be able to understand the seriousness and consequences of things he does. If he is a Married person he should take the consent of his wife. The consent of his wife can be dispensed with only if it is shown that the wife has converted her religion and does not continue as a Hindu, renounced the world or has been declared by a component Court as to have become insane. If it appear that a person has morethan one wife living at the time of adoption he should take the consent of all his wife. If he is taking a female child in adoption, he should be 21 years older in age.
7. What are the conditions of a female Hindu to take in adoption ?
She should be above the age of 18 years, and should be able to understand the seriousness and consequences of things she does. She should be 21 years older to the child if she adopts a male child.
8. Can married women take a child in adoption?
No., a married woman cannot take a child in adoption. But if her marriage has been dissolved by a competent court or her husband has renounced the would or if she has become a widow or if the husband has converted his religion and does not continue as a Hindu or has been declared by s county law to be of an sound mind then she can adopt a child.
9. Are there any other conditions applicable in general?
Yes, a part from this, a child can be taken in adoption only as a son or daughter. If a son is being adopted, the adoptive father or mother by whom the adoption is made must not have a Hindu son, grand son or great grand son living at the time of adoption. If a daughter is adopted, the adoptive father or mother must not have a daughter or grand daughter living at the time of adoption. Some child cannot be adopted by 2 or more persons.
10. Who can be adopted?
Any person who is a Hindu, not completed fifteen years of age and not married can be adopted. How ever, if the custom and usage of the parties to the adoption permits, a person above the age of 15 or who has been married can be adopted.
11. Who can give a child in adoption?
It is either the father or mother or the guardian of the child. It father is alive he alone can give the child in adoption unless he has renounced the world finally unless he was declared insane by the court. How ever he cannot give the child in adoption without the consent of the wife. The consent of the wife can be dispensed on the same grounds. The guardian of the child can give in adoption if both the biological parents are either not alive or their identify is not known. In such case the permission of the court is necessary.
12. Who can be called as a guardian?
A person who has the care of the child or both the child and its property is a guardian of the child. Such guardian may be a one who is appointed by a will of the child’s father or mother or one who is appointed by or declared by a district court.
13. Should religious ceremonies be preformed to validate adoption? - No
14. How an adoption is effected?
Adoption is usually recorded by a Deed of adoption and registered. Sometimes it is done either thro religious ceremonies on thro family arrangements.
15. Does the law requires the adoption to be registered?
No. Law does not compel the registration of adoption. But since an adoption results in changing the course of succession depriving wives and daughters of their rights and transferring the properties to comparatively strangers or more remote relations it is necessary that the evidence to support it be such that it is fro from all suspicion of fraud and so consistent and probable as to leave no occasion for doubling its truth. Hence registration is advisable as mandatory.
16. What are the consequences of an adoption?
An adopted child should be deemed to be the child of his or her adoptive parents for all purposes with effect from the date of adoption and from such date all his or her ties with the family of his birth gets reserved. How ever the child cannot marry any person Whom he or she could not have married if he or she had continued in the original family. The property which were entitlement of the child should continue to be its entitlement subject to the obligation attached to the property. The adoption shall not affect the rights of the relatives of the adopting parents in their share in the property.
Adoption under the Juvenile Justice Act.
The Juvenile Justice Act acknowledges that the primary responsibility for providing care and protection to children shall be that of their family and therefore views adoption as one among the measures to rehabilitate and reintegrate a child who are orphaned, abandoned neglected and abused thro institutional and non-institutional methods.
The Juvenile Justice Act is a secular legislation made in the lines of UNCRC and shall apply to all children who are coming within its purview irrespective of religion, caste or creed. In the light of section 41(3) of the Act, The Juvenile Justice Board is deemed to be the guardian of such children and it shall give in adoption keeping in mind various guidelines issued by the it State Government and Supreme Court from time to time.
This would obviously imply that though the religion of the child may not be material at the time of adoption the religious and personal laws of the adopting parents cannot be ignored as it relies on the capacity of the adopting parents to take the child in adoption. The Juvenile Justice Act, has ruled out several restrictions on adoptions. Under the Act the Board may allow a child to be given in adoption to a single parent and to adopt a child of same gender irrespective of the number of living bio logical son’s or daughters. Child may also be given in adoption to fit persons and fit institutions on the suitable directions.
Monday, June 25, 2007
blog about blog
With this breif introduction about me and my blog here is some informations to share:
Since I am writing a Blog, here are few informations on the blog itself. Those who them share more from what you know. For those to whom this is new tell what you feel about it and ask more on what you want to know.
The term "weblog" was coined by Jorn Barger on 17 December 1997. The short form, "blog," was coined by Peter Merholz, who jokingly broke the word weblog into the phrase we blog in the sidebar of his blog Peterme.com in April or May of 1999. This was quickly adopted as both a noun and verb ("to blog," meaning "to edit one's weblog or to post to one's weblog").
A blog (a portmanteau of web log) is a website where entries are written in chronological order and displayed in reverse chronological order. "Blog" can also be used as a verb, meaning to maintain or add content to a blog. Blogs provide commentary or news on a particular subject such as food, politics, or local news; some function as more personal online diaries.
A typical blog combines text, images, and links to other blogs, web pages, and other media related to its topic. The ability for readers to leave comments in an interactive format is an important part of many blogs. Most blogs are primarily textual, although some focus on art (artlog), photographs (photoblog), sketchblog, videos (vlog), music (MP3 blog), or audio (podcasting), and are part of a wider network of social media.
Chronicles, commonplaces, diaries, perzines and amateur press associations can all be seen as predecessors of blogs.
After a slow start, blogging rapidly gained in popularity: the site Xanga, launched in 1996, had only 100 diaries by 1997, but over 20 million as of December 2005
Since I am writing a Blog, here are few informations on the blog itself. Those who them share more from what you know. For those to whom this is new tell what you feel about it and ask more on what you want to know.
The term "weblog" was coined by Jorn Barger on 17 December 1997. The short form, "blog," was coined by Peter Merholz, who jokingly broke the word weblog into the phrase we blog in the sidebar of his blog Peterme.com in April or May of 1999. This was quickly adopted as both a noun and verb ("to blog," meaning "to edit one's weblog or to post to one's weblog").
A blog (a portmanteau of web log) is a website where entries are written in chronological order and displayed in reverse chronological order. "Blog" can also be used as a verb, meaning to maintain or add content to a blog. Blogs provide commentary or news on a particular subject such as food, politics, or local news; some function as more personal online diaries.
A typical blog combines text, images, and links to other blogs, web pages, and other media related to its topic. The ability for readers to leave comments in an interactive format is an important part of many blogs. Most blogs are primarily textual, although some focus on art (artlog), photographs (photoblog), sketchblog, videos (vlog), music (MP3 blog), or audio (podcasting), and are part of a wider network of social media.
Chronicles, commonplaces, diaries, perzines and amateur press associations can all be seen as predecessors of blogs.
After a slow start, blogging rapidly gained in popularity: the site Xanga, launched in 1996, had only 100 diaries by 1997, but over 20 million as of December 2005
Welcome All
I am P.B. Suresh Babu from Chennai, Tamilnadu, India. I am an Advocate by profession. I am firm with my ideologies and style, at the same time I accommodate others concerns as well. I feel good in being useful to as many people as I can. I am interested to involve in activities and in sharing opinions .
This blog is intended to bring the Indian laws as applicable in Tamilnadu in a common man's language through the web.I would also like to answer queries that the interested visitors may like to ask. Opinion sharing could be the better way to explain law. one persons query may cover the interest of many. when opinions are published in public domine it will serve a lot of people.
the opinions in this blog online may not be perfect opinions as the are not given after scrutiny of relevant documents or after a one to one discussion. readers are advised to consult a lawyer of their locality or meet me in person before proceeding as per the opinion.
This blog is intended to bring the Indian laws as applicable in Tamilnadu in a common man's language through the web.I would also like to answer queries that the interested visitors may like to ask. Opinion sharing could be the better way to explain law. one persons query may cover the interest of many. when opinions are published in public domine it will serve a lot of people.
the opinions in this blog online may not be perfect opinions as the are not given after scrutiny of relevant documents or after a one to one discussion. readers are advised to consult a lawyer of their locality or meet me in person before proceeding as per the opinion.
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