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

Enforcement of order of maintenance granted Under Section 125 of the Code of Criminal Procedure.




Enforcement of order of maintenance 

granted 

Under Section 125 of the Code of 

Criminal Procedure.

@1                                             Introduction :- The object of section 125 is not to punish a person for neglect to maintain those whom he is bound to maintain. The section provides only a speedy remedy by a summary procedure to enforce liability in order to avoid vagrancy. The provision of chapter IX of Cr. P. C. should be liberally construed as the primary object is to give social justice to women and children and to prevent distribution and vagrancy by compelling those who can support those who are unable to support themselves. These provisions provide us speedy remedy to those who are in distress. This section gives effect to the natural and fundamental duty of man to maintain his wife , children and parents so long as they are unable to maintain themselves. Its provisions apply and enforceable whatever may be the personal law by which the persons concerned are governed.

@2                               So far as the enforcement of the order passed under section 125 of Cr. P. C. is concerned ,the provisions of sub-section (3) of Section 125 and Section 128 are relevant.Sec.125(3) of Cr. P. C. Provides for sentencing a person ,committing default in payment of maintenance to imprisonment. An application under sub section (3) is an information to the court of the breach of maintenance order. After the maintenance order is passed, it becomes the duty of the court itself to see that payments are duly made. The only legal obligation placed on the wife or the minor or parents in whose favour the order is made, is to present an application within one year from the date on which the amount becomes due. When that is done , it is for the court to get his own order enforced and see that it is complied with. The proceedings from that stage cannot be treated as a case between the two original parties. Non-appearance of a party or its non-prosecution does not necessarily entail the dropping of the proceeding. The court is bound to enquire in to the reasons for non-compliance of the order and to issue a warrant for levying the amount due.

@3                                   The court should first issue a notice to the person against whom the order of payment is so made, to show cause as to why he is not making the payment and after enquiry , the warrant of attachment should be issued. Notice to the defaulter shall be issued before the issuance of warrant of arrest. Before issuing a warrant for levying the maintenance due as a fine, the husband should be given an opportunity to show cause against the order for issue of warrant.

                     The Court should fix the period for payment of the maintenance amount and where the payment is not made, should issue warrant of arrest and order imprisonment till the payment is made ,attachment of property is not necessary.

 @4                             It is necessary before the order can be enforced by a sentence of imprisonment, that it should be made out that the non- payment of maintenance was the result of wilful negligence on the part of the defendant. The sentence of imprisonment can, therefore be passed only after there has been wilful neglect to comply with the order, fallowed , by an unsuccessful process of distraint . The imprisonment that is ordered is not a punishment for contempt of courts order, but it is for the unpaid portion of the maintenance. The maximum sentence that can be ordered under sub-sec.(3) is one month,according to a Division Bench of Hon'ble Bombay High Court, it can be upto 12 months maximum.

 @5                      In “Gorakhnath Kahndu Bagal -Vs- State of Maharashtra and ors., 2005 CrLJ-3158”the Hon'ble Bombay High Court observed that Magistrate has power to sentence imprisonment for more than one month – For each breach of order of maintenance, Magistrate may impose one month imprisonment - Further, proviso to S. 125(3) contemplates application for recovery within 12 months from date of order – Hence, recovery of amount due for 12 months can be made in one application , and Magistrate may award imprisonment upto 12 months maximum.

  @6                                  Proviso 1 is intended to present a person entitled to maintenance from being negligent and allowing arrears to pile up until their recovery would become a hardship or an impossibility. The proviso is clear and in categorical terms puts an embargo on the powers of the Magistrate to issue any warrant for recovering the amount due unless the application is made to the court within a period of one year from the date on which it became due. A subsequent application for arrears of subsequent period filed in the pending application, would not be a fresh application and cannot be dismissed as time barred.

 @7                   The period of limitation, as envisaged under the first proviso to section 125 (3), has to be computed from date on which it became due, i.e. legally recoverable. The word '' from the date on which it became due'' should be interpreted to mean from the date when the court holds that she is entitled to maintenance. The limitation period one year is not applicable in case of maintenance order in favour of minors, in view of the provisions of section 3, 6 and 29 (2) of the limitation Act.

 @8                                  Once the court has issued a writ of attachment of salary in default of payment of the arrears or current maintenance, without sufficient cause, the salary when becomes due or any part thereof shall be liable for attachment. If during any particular month, maintenance is paid , the writ of attachment shall remain dormant. In any case of default, until the salary becomes payable to the husband at the end of the month, the writ of attachment shall continue to remain dormant so as to review at the end of the month.

                     Mere sentencing the defaulting party to jail, imprisonment does not wipe out the arrears which were outstanding. The defaulted arrears continued to be the liability of the defaulting petitioner.

 @9                                   A distinction has to be drawn between a mode of enforcing recovery of maintenance allowance on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a “mode of enforcement”. It is not a “mode of satisfaction” of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. It cannot be said that a person who “without reasonable cause” refuses to comply with the order of the court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for recovery of the amount of monthly allowance which has fallen

in arrears.

@10
Conclusion :- It is the bounden duty of a Judge, whenever he comes across a proceeding, having its roots in a matrimonial dispute to persuade the husband and the wife to sink their differences and to save their matrimonialship from wrecking. Acting on behalf of the society which invests him with the power and the glory attached to his office, it is his duty to strive for mending of a home rather than non-chalantly watch the breaking of a home. It is his higher duty to restore happiness amongst the members of the household which was about to break instead of being content by deciding a mere factual or legal issue.





































Comments

Popular posts from this blog

How long a Will is valid after the Death?

SUCCESSION CERTIFICATE

Probate In India: Definition, Importance & Application