LegalCrystal – Blog

AN USEFUL LEGAL TIP FOR ALL:

BE CAREFUL- [BE TRUTHFUL] !YOUR ORAL EVIDENCE  COUNTS TILL THE END!

ORAL EVIDENCE YOU ADDUCE IN A WITNESS BOX AND THE DOCUMENTS YOU PRODUCE IN A COURT OF LAW IS VERY VERY IMPORTANT-  IT PLAYS A VITAL ROLE IN DECIDING YOUR CASE THROUGH OUT.  EVEN IF YOU GO ON AN APPEAL FURTHER, YOUR ORAL EVIDENCE ADDUCED IN THE LOWER COURT HOLDS GOOD TILL THE END.

Dear Readers,

In my opinion many of the cases fail because of bad oral evidence lead by the party and for non production of proper documentary evidence.  So I urge through this medium that parties should be thoroughly sensitized before they enter the witness box in a Court of Law.  Many a time I have observed in the Courts,  people whether they are literate/illiterate, urbanite or a rural folk they adduce evidence so casually without realizing the consequence or the impact that word will have on their case.  They behave so causally!  Only few people will have a focused mind set and such people narrate the facts properly.  We see another set of people who are otherwise worldly wise and in the Lawyers chambers they act very smart and they understand the impact of the points to be adduced but when they stand before a judge in the witness box they instead of revealing the exact truth and fact , I don’t know out of servile attitude or because lack of knowledge of court room and the impact of their behavior and conduct that will have on their case – when a question is put by an advocate or by the court, instead of revealing the truth they say something else.  Such people I feel instead of losing the case, better to give a Power of Attorney to a relative or friend who will have balance of mind and thought and who is capable of adducing proper evidence to support the case properly.

TAGS: IMPOTENCY / ANNULMENT OF MARRIAGE / HINDU MARRIAGE ACT S.12(1)(a) / TRIPURA FAMILY COURTS RULES

Dear Readers

Here is a case where the High Court of Guwahati held that:

Oral evidence of wife which alone can be basis for a decree for annulment of marriage [A marriage annulment is a legal procedure that dissolves a couple's marital status by establishing that a valid marriage never existed. In effect, it nullifies the marriage.] under Hindu Marriage Act, if the same inspires confidence and there is no good reason to discard the same. And an adverse inference can be drawn from conduct of husband in avoiding medical tests.

[ excerpts from:2008(1)AKAR(NOC) 11(GAU.)=AIR 2007 GAUHATI 178-AgartalaBench]

Petition for ‘annulment of marriage’: Ground is non-consummation of marriage owing to impotency [chronic inability to attain or sustain an erection for the performance of sexual act. sterility, esp. in the male.] of husband hence medical test of husband directed. Only allegation of newly wed bride is that marriage could not be consummated owing to impotence of husband. The husband raised a plea of financial predicament to undertake journey to appear before medical expert.

The Hon’ble Court observed that The expenses incurred in obtaining opinion of expert as provided in Rule 18(3) of Tripura Family Courts Rules(2002) do not include the expenses of the parties for undertaking journey to appear before the expert. It is the expenses which may be incurred in examining the expert for obtaining opinion. In other words, if the expert is required to attend the Court, all the expenses would be borne by the Court from the fund allocated by the State Government. There is, however, a rider below Rule 18(3), which provides that if the expert is a public servant, the Family Court shall issue a Court certificate as issued by other Courts to official witnesses. The experts already in the Government service shall not, however, be entitled to get any remuneration for their opinion and they shall be duty bound to help the Family Court. Thus a plain reading of the said provision would give an impression that the appellant husband who was directed to appear before the expert in the Hospital at Kolkata was not entitled to the expenses for undertaking journey to Kolkata. His prayer for fund from the Family Court is liable to be rejected. The husband being a Class one gazetted officer is earning a handsome salary. Such a plea of financial predicament raised by him is not acceptable. This conduct of the husband indicates that he was not interested to clear the charge coming from his own wife that he was sexual impotent. And a newly married wife cannot be expected to tell her mother that her husband is impotent. No collusion between husband and wife and nothing to show that the husband and wife were on bad terms. Sole testimony of wife cannot be discarded for want of corroboration. Quality not quantity would determine sufficiency of evidence as provided by S.134 of Evidence Act. Proposal of wife for separate living not sufficient enough to forbid husband from cohabitation if proposal was not dragged to serious acrimony [bitterness, animosity, spitefulness, asperity, spite.] There was nothing to show that the husband and wife were on bad terms. Expert opinion about impotency is important, though it is not always mandatory if other sufficient evidence is on record. Decree of nullity of marriage can be passed. And compensation or permanent alimony can be given in case of nullity of marriage. The Court may either direct a gross sum or monthly or periodical sum as permanent alimony and maintenance.

[hope the above article helps the common man to understand the sensitivity of the situation by looking at the observation of court about the behavior and conduct of the parties and the importance of adducing quality evidence.]

http://www.ehow.com/about_5347597_causes-impotence-young-men.html

image source*

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:

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.