Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the

Inquiry and Trail in cases Domestic Violence Case laws on important provisions

Inquiry and Trail in cases Domestic ViolenceAct,

Case laws on important provisions
   @1   “The Protection of Women from Domestic Violence Act, 2005”   is enacted with a specific object to protect the human rights of the women who are abused in various manner. On the global level this phenomenon of domestic violence was considered and the United Nations Committee on Conventions of Eliminations of All Forms of Discrimination Against Women (CEDAW) in its general recommendations has recommended that State party should act to protect women against violence of any kind especially that occurring within the family. Recognizing the fact that, domestic violence is widely prevalent and has become universal problem of power relationship and it is attributed not only within the families but also on various levels wherever the women are working or visiting for their domestic needs. The necessity to enact the legislation for protection of women from domestic violence is outcome of such circumstances. It is necessary to think that already various pro-women legislations were in existence. But, due to the lack of legal awareness rigidity in implementation, women were subjected to domestic violence on various levels.
2. Domestic violence is widely prevalent, however most of the time it is invisible in the public. Keeping in view the rights guaranteed under Articles 14,15 and 41 of the Constitution of India, to provide for a remedy under the Civil Law which is intended to protect the woman from being victim of domestic violence and to prevent the occurrence of domestic violence in the society the bill was introduced.
3. The Act defines the expression “Domestic Violence” covering the actual abuse or threat or abuse i.e. physical, sexual, verbal, emotional or economic, it has also covered harassment at the hands of in-laws for the unlawful demand of dowry. It has provided a right to a woman to secure housing as to reside in her matrimonial home or shared household irrespective of the fact that, she has interest or right in such home or household. This Act has empowered Magistrates to pass various orders for the implementation of the Scheme of this Act.
4. The PWDVA recognizes three important rights:
The right to be free from violence, which is to be inferred from the definition of domestic violence contained in section 3.
The right to reside in the shared household is recognized in section 17.
The right to seek remedies under this law is provided for in section 12.
5. Various reliefs which can be granted under the said Act are as under:
(a) Under Section 18, protection order can be passed in
favour of the aggrieved person;
(b) Under Section 19, residence order can be passed in favour of the aggrieved person;
(c) Section 20 provides for grant of monetary relief of maintenance, medical expenses, loss of earnings etc.;
(d) Section 21 confers power on the learned Magistrate to pass orders regarding custody of a child;
(e) Section 22 confers power on the learned Magistrate to pass orders regarding compensation; and
(f) Section 23 of the said Act confers power on the learned Magistrate to pass ex parte orders granting ad interim relief or interim relief in terms of the provisions of Section 18, 19, 20, 21 and 22 of the said Act.
6. It is true that, the reliefs were available to women under the Civil Laws but the implementation was not speedy. Now, the aggrieved person can obtain an injunction against dispossession, can secure maintenance for a destitute wife and her minor children. Now, the Judges are not only bound to provide relief to a woman under this law but, they have to act according to the ideological framework of the enactment. The Courts have to provide a speedy and less expensive alternative to the aggrieved parties. Due to the new enactment the victims or aggrieved women would be saved from the trouble of running from one Court to other to claim her dues and enforce her right for maintenance, dispossession from the matrimonial home and alternative residence as under the provisions of this Act the jurisdiction for claiming all these relief is now vested with the Magistrates.
7. Since PWDVA is a civil statute all stages of civil trial will have to be followed. Trial procedures are technical and involve procedural aspects and the parties may need lawyers at this stage even if they have not engaged the services of a lawyer earlier.
8. Any of the parties can ask for “closed door” or “in camera” hearing proceedings .
When we examine the provisions of the act it is evident that the term 'aggrieved woman' is applicable to any woman irrespective of her age. The term would also apply to an unmarried, deserted or divorced woman and also to a widow, as the term 'lives or at any stage has lived” suggests. This phrase used in S 2(s) of the Act defines the term “shared household “ as household where the person aggrieved lives or at any stage has lived in a domestic relationship. Women within wide range of relationships are entitled to claim reliefs under this Act against their corresponding male relatives eg wives against their husbands, divorce women against their ex husbands daughters against their fathers, widows against their natal and parental family members.mothers against their sons,etc. In addition the female relatives of the husband/live in partner can also be added as parties to the proceedings. The divorced women can also claim relief under this act.
9. Even women in past relationships are entitled to reliefs under the PWDVA .It is observed in Karimkhan Vs State of Maharashtra 2011 Cri LJ 4793 Bom, that the interpretation that furthers the object of the statute should be adopted, rather that the one that defeats the purpose of the statute. If a widow is thrown out of her shared household after the death of her husband she can claim relief under the provisions of the PWDVA .
10. To facilitate the process of obtaining urgent reliefs under the Act, the jurisdiction is also given to other civil or criminal courts where other proceedings are pending or are initiated on behalf of the woman to avoid multiplicity of proceedings as mentioned under section 26 of the Act.
11. The procedures to be followed under PWDVA are stipulated in section 28 of the Act. As per the provisions, the Magistrate is to follow the procedures of CR.P.C.but has the liberty to lay down further procedures in the interest of justice. This provision gives some leeway to the Magistrate and in certain situation they can avoid the strict procedures prescribed under the Cr. P.C. and can even resort to procedures in the CPC.
12. The quasi civil, quasi criminal nature of the Act provides the scope to interpret the provisions in a very wide manner to effectively protect women.
13. In criminal proceedings, amendments to a complaint are not permitted. Under the PWDVA though the jurisdiction is in the Magistrates court the proceedings are not criminal but are deemed to quasi civil. Hence amendments to pleadings can be permitted.
14. Raosaheb Kamble Vs Shaila Kamble 2010 Cri L J 3596 Bom
The wife had filed under PWDVA and later made an application for amendment. The husband had filed his reply objecting to the same. But overruling his objections the Magistrate passed an order in favour of the wife. The husband appealed against this ruling . The Honble High Court dismissed the appeal on the ground that since the Act is civil in nature amendments to the pleadings can be allowed. The Court further held that as per Rule 6 of the PWDVA the order under the Act must be enforced as per S 125 Cr.P.C. which proceedings are also quasi judicial and hence , using the said frame work , amendments must be allowed.
15. To enable the court to provide speedy remedy to an aggrieved woman. the Act dispenses with the requirement of filing a separate applications Interim Reliefs. Since all the orders under the Act are deemed to be temporary orders and the main purpose of the Act is to provide the woman urgent and immediate reliefs in order to safeguard her against further domestic violence , the Act dispenses with all such technicalities of civil law.
16. In Vishal Damodar Patil vs VishakhaVishal Patil 2009 C.L.J.107, the wife who was out of the house, filed an application under the PWDVA and claimed for maintenance and residential orders. The Court gave her interim reliefs through which she re-entered the house. Aggrieved by the orders. the husband filed an appeal in the Sessions court but the same was rejected and hence he filed a revision application in the High Court . It was argued on behalf of the husband that the said orders were illegal as there was no separate interim applicaation filed by the wife. The Honble High Court after going through the various provisions i.e. S 12,S.23(2) , Rule (6) (7) of the PWDV Rules held that there is no need for separate application for interim reliefs and dismissed the husbands application.
17. Since it is a beneficial legislation, minor technical errors in the application filed by the wife cannot be used to hinder the course of justice. An aggrieved woman cannot be held to be liable for the errors. These errors are bound to occur as the Act envisages less technical approach to justice and primarily focuses to grant speedy remedies to the woman. The error may have been committed by a protection officer or a service provider or a lawyer assisting her in the proceedings and she cannot be deprived of an order in her favour due to this. Since the Act envisages a situation where an aggrieved woman herself can approach the courts for relief without the aid of a representative she cannot be expected to know all the legal requirements and technicalities and the court must take this into consideration while granting reliefs under this Act. In this respect , when such issues were brought to the notice of the courts , they have held that undue importance should not be given to minor errors and these can be overlooked in view of the urgency of the case and the needs of the concerned woman.
18. As per section 9(1)(b) of the D.V.Act it is the duty of the Protection Officer to file a DIR in the Magistrate Court every time an aggrieved person approaches him/her and is also expected to send a copy to the local police station where the aggrieved person resides, even when the aggrieved personn does not wish to file a formal complaint under PWDVA with the Magistrate.
19. The PWDVA provides for the institution of protection officers who are mandated to an aggrieved woman in various ways and also to help the Ld Magistrate to implement the orders. However this remains a major drawback of the enactment as most States have not appointed protection officers with independent charge. The officers appointed as POS have additional charge in addition to their existing duties . This causes delay in filing the initial domestic incident report(DIR). But merely because the state administration has failed in its duty, the magistrate cannot absolve their own responsibility in providing urgent protection to a woman .
20. In Manoj Changani Vs Prema Changani, MANU/MH/0087/2012 the court observed that,” though the report is necessary, it should be left to the discretion of the Magistrate who can call for it at the appropriate stage, the court commented that applications drafted by lawyers on behalf of the applicants are extensive and cover all aspects which are required in the complaint and therefore in such cases, the report of the PO may not be relevant. However, if the application is a badly drafted, the court may call for the report of the PO which will help the court”.
21. In Nandkishor Vinchurkar Vs Kavita Vinchurkar ANU/MH/0957/2009 , the Court held that the report of the protection officer was not necessary at the interim stage as the purpose of interim reliefs is to provide the immediate respite to the aggrieved woman and not to delay the same on the ground that the report of the protection officer had not been received. However, if the court considers necessary, the court can order the protection officer to submit the report at a later stage if it is necessary for the final determination of the issues
In this case two issues were discussed by the High Court. The first was the scope of S 29 of the PWDVA with regards to the orders under PWDVA passed by the magistrates court an any other court.
23. The court observed that as per S 29 all orders under PWDVA are appealable be they interim or final. However, the appellate court while dealing with interim and expare ad interim orders shall not usually interfere with the discretionary powers of the Magistrate. The appellate court shall interfere only if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or it is found that the lower court has ignored the settled principles of law regulationg the grant or refusal of interim relief. Further an appeal shall not be maintenable under section 29 with regards to purely procedural orders which do not affect the rights and liabilities of the parties.
24. The High Court further held that there shall be no appeal under Section 29 of the PWDVA with regards to the orders passed by any court other than the Magistrate court exercising jurisdiction under S 26 of the PWDVA while granting any reliefs therein.
25. Under the PWDVA, it is mandatory for the Magistrate to furnish the order copies to the parties as well as to the officer in charge of police station and the service provider, free of cost. This is because the Magistrate is expected to monitor the implementation of his orders through the protection officer, the police officer and the designated service provider.
26. Whether a statute under a criminal law can have retrospective effect- this has been one of the main concerns when orders are passed in favour of the wife in respect of the acts of violence committed prior to the Act coming into force. Criminal enactments cannot have retrospective effect and a person cannot be1212 convicted for act committed prior to the enactment. But since the PWDVA is a civil statute this principle does not apply. Even when the specific incidents mentioned in the complaint have occurred prio to the enactment, the courts have passed orders in favour of the complainant and appeal courts have upheld these orders. This can be done by invoking the principle that denial of maintenance or depriving a woman her right of residence in the shared house hold are offences of a continuous nature.
27. One of the primary concerns of the PWDVA is to provide immediate relief to women facing domestic violence. It is the reason the Act prescribes simple procures and dispenses with legal technicalities. Hebe, it is mandatory for a court functioning under its provisions to grant women urgent orders. Minor procedural lapses cannot be allowed to be used as dilatory measures to delay justice which would result in grave injustice to aggrieved woman. Since it was a novel statute there were several technical and procedural issues that need to be clarified and streamlined. Even while doing so , the courts have stayed clear of controversies and have not lost the focus that the primary aim of the enactment is to protect the rights of women. The two aspects which have been the concern of the Act is that the provisions should be given the widest possible scope and second, the technical impediments should not be allowed to be used as dilatory.



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