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LAND MARK JUDGMENTS ON FAMILY LAW FOR THE YEAR 2020-Kishan Dutt KalaskarIntroduction: Property Claim - No limitation period for a divorced wife to claim property endowed with her husband. Child Custody - Be that as it may, the Court was unwilling to "throw away" the Petitioner on the ground of jurisdiction. Daughters Rights - While clarifying the concept of retroactive application vis-a-vis the 2005 amendment, the Court held that the 2005 amendment makes accessible to female successors the benefit of succession on par to that of her male counterparts’ dependent on an antecedent event, i.e., her birth. Maintenance for unmarried daughter - She can claim maintenance U/s20(3) of the Hindu Adoptions and Maintenance Act if she can prove that she is unable to maintain herself. Right to Reside for Daughter- in- law - The Court held that living off a woman in a household refers to living with some permanency.1.) Sheela KK vs N G Suresh Citation: Mat Appeal No.358/209 Date: 24th September 2020 Background of the Case: Kerala High Court had decided that there is no limitation period for a divorced wife to claim property endowed with her husband. Even after the marriage dissolution, the husband will be considered to hold in trust the properties endowed with him by the wife before marriage as dowry, as ruled by the full Bench of Kerala High Court.  The issue before the Court: ·        Whether trust made by a wife, entrusting her property to her husband gets extinguished after the dissolution of marriage? ·        Whether the wife can invoke proceedings under section 10 of the Limitation Act, 1963, with no time limitation?  Observation made by the Full Bench: ·        The Bench noticed that it is the settled law that when the wife entrusts the husband any property belonging to her, trust is made, and the husband is thus bound to return the same to his wife. Section 10 of the Limitation Act demonstrates that there is no limitation for initiating any such action, without some other statute providing for a limitation, the trustee can't take a contention that he will not return the trust property for the account of any time limitation. Therefore, when the relationship between the parties gets unsettled, the question presented is, resulting in divorce and whether the trust gets extinguished, and the divorced wife would be entitled to invoke Section 10 of the Limitation Act and would file a suit at her will anytime. In such a situation, the questions to be considered are (i) Whether a trust had been made at any time, (ii) if a trust has been made and the husband stays as a trustee, whether it gets extinguished after the dissolution of marriage or under some other conditions. ·        Also, as per Section 6 of the Dowry Prohibition Act, 1961, a legal trust is made regarding dowry. ·        The Bench further added that as per Section 77 of the Indian Trusts Act of 1882, the conditions under which a trust is extinguished are stated. Hence, except if any of the outcomes referenced u/s section 77 happens, the trust keeps working, even though there is the dissolution of marriage. ·        The Court also noticed that when the wife endows the husband, any property belonging to with her, trust is made, and the husband will undoubtedly return to his wife. However, suppose the same isn't returned. In that case, the wife has a right to demand the same by filing a suit or filing an application before the Family Court or making other fundamental steps under the significant statutes in force. \ 2.) Anushree Goyal v. State of Madhya Pradesh & Ors. Case No.: WP No. 7739/2020 Date: 8th June 2020  Background: The writ had been filed by the mother of a two-year-old child born in the US. Altogether, the Petitioner's husband had gotten an ex-parte restraint order against her from the Court, compelling her to move out of her matrimonial house and return to her parents' home in Indore, India. From that point, the Petitioner's husband left their child at his parents' house in Gwalior and executed a Power of Attorney and Authorization favouring his parents to care for the child. The Petitioner had, therefore, moved the High Court, seeking custody of her son. Maintainability:The Respondents, i.e., the in-laws of the Petitioner, had contended that a habeas corpus petition isn't maintainable in the issue of child guardianship. Be that as it may, the Court was unwilling to "throw away" the Petitioner on the ground of jurisdiction or the ground of alternative remedy accessible under the Guardians and Wards Act, 1890.  Issue: Whether a Habeas Corpus request is maintainable regarding the guardianship of a minor child?   Judgment: Dependence was placed on Capt. Dushyant Somal v. Sushma Somal, (1981), whereby the High Court had permitted a writ of Habeas Corpus with a direction for giving the child's custody to the Petitioner therein. In the current case, the Court saw that the child had aged about two years and the Supreme Court, keeping in view Section 6 of Hindu Minority and Guardianship Act, 1956, was of the view that the child must be in the custody of the mother. The Court explained that its order would not come in the way of the parties if they would want to approach the Civil Court under the Guardianship and Wards Act, 1890. The Bench additionally explained that the Civil Court would be allowed to decide the matter without being affected by the order passed by this Court to keep in view the legal provisions regarding visitation rights of father/grandparents. The Respondents had contended that regarding the injunction granted against the Petitioner by the Franklin Region Regular Supplications Court, Division of Homegrown Relations, Columbus, Ohio (USA), the Petitioner was not eligible for the child's care. Rejecting this contention, the Bench held that the said ex-parte injunction order in no place limits the mother to meet the child or to keep the child with her. Further, no order was placed on record, which directs the child's guardianship with the father. The Court also saw that the child was very attached to his mother, and it was remarked. Therefore, the Court held that the Power of Attorney and Authorization executed by the Respondent (husband) in the child's grandparents' custody was an "unheard concept" in Indian courts. Accordingly, the Court permitted the appeal and it also expressed that since the child referred to is a US resident, the US Government officials and the Association Service of Outer Issues be intimated about the order. 3.) Vineeta Sharma v. Rakesh Sharma CIVIL APPEAL NO. DIARY NO.32601 OF 2018 Date: 11th August 2020 Background of the case: The Hindu Succession Act, 1956 was an exertion to codify the Hindu Law of Succession and align it with advancing thinking on the fair legacy. To accomplish the constitutional objective of gender equality, the Hindu Succession (Amendment) Act, 2005, was passed, giving daughters similar rights in coparcenary properties as the sons.Notwithstanding, between the Hon'ble High Court's decisions in Prakash v. Phulavati and Danamma v. Amar, there was considerable uncertainty on whether the 2005 amendment was retrospectively applicable or prospectively applicable.Issues before the Court: ·        Whether the amended Section 6 of the Act of 2005 requires the coparcener to be alive as 09.09.2020 for the daughter to claim rights in the coparcenary property? ·        Whether the amended Section 6 of the Act of 2005 is prospective, retrospective or retroactive? Judgment ·        The Vineeta Sharma decision operates on the intent that Hindu Succession (Amendment) Act, 2005, was to neither confer its advantages to female successors prospectively nor retrospectively, yet it was to give benefits retroactively. The legislation applies retroactively when it prescribes benefits conditional upon eligibility, which may emerge even before enacting such legislation. While clarifying the concept of retroactive application vis-a-vis the 2005 amendment, the Court held that the 2005 amendment makes accessible to female successors the benefit of succession on par to that of her male counterparts’ dependent on an antecedent event, i.e., her birth.·        The rights can be claimed by the daughter born earlier with effect from 9th September 2005 subject to limitations prescribed in Section 6(1) regarding disposition or alienation, partition or testamentary disposition which had taken place before 20thDecember 2004.·        The Court further held that it is not necessary for the father coparcener to be alive on 9th September 2005 as the right in coparcenary of the daughter is by birth. Notwithstanding that a preliminary decree has been passed, the daughters are to be given a share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.·        The SC held that the death of the predecessor coparcener, which triggers the notional parcel under Section 6 of the unamended Act, just effected the computation of the share yet not the right to claim a share since the daughter secures the status of a coparcener after her birth, through the 2005 amendment, her entitlement to claim a share under Section 6 of the Amended Act, according to the Vineeta Sharma judgment, is free of a notional partition in case of her predecessor coparcener's death before the 2005 amendment.·        Additionally, it was held that a plea of oral partition cannot be accepted as the statutorily recognized mode of partition unless in exceptional cases wherein theplea of oral partition is supported by public documents and partition is demonstrated in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and is to be rejected out rightly.4) Abhilasha v. Parkash Citation: 2020 SCCOnline SC 736Date: 15th September 2020Background:The wife and children of the respondent had filed a suit for maintenance u/s 125 CrPC before the Magistrate wherein the Magistrate allowed maintenance subject to the condition that the Appellant herein will b=entitled to maintenance until she attains majority. This order was challenged before the High Court, but the same was dismissed. Aggrieved by the order of the High Court, the Appellant herein approached the Supreme Court, stating that even though she had attained majority but since she is unmarried, she is entitled to claim maintenance from her father. She further argued that according to S.20 of the Hindu Adoptions and Maintenance Act, 1956, a person has an obligation to maintain his unmarried daughter. Issues before the Court:(i)                Whether the Appellant, who although had attained majority and is still unmarried, is entitled to claim maintenance from her father in proceedings u/s 125 CrPC although she is not suffering from any physical or mental abnormality/injury?(ii)               Whether the orders passed by Judicial Magistrate as well as learned Revisional Court limiting the claim of the Appellant to claim maintenance till she attains majority should be set aside with a direction to the respondent to continue to give maintenance till the time she remains unmarried?Judgement:·        The Court held that a daughter who has attained majority and is unmarried is not entitled to claim maintenance from her father u/s 125 CrPC if she is not suffering from any mental or physical abnormality. However, she can claim maintenance u/s 20(3) of the Hindu Adoptions and Maintenance Act if she can prove that she is unable to maintain herself. ·        The Court further held that S.20 of the Hindu Adoptions and Maintenance Act casts a statutory obligation upon a Hindu man to maintain his unmarried daughter who is unable to maintain herself. This is her absolute right recognized under personal law and can be enforced against her father. ·        It was observed that the Family Court having jurisdiction to decide a case under S.125 CrPC and S.20 of Hindu Adoptions and Maintenance Act, can exercise jurisdiction under both the Acts and, in an appropriate case, can grant maintenance to unmarried daughter to avoid multiplicity of cases. 5) Satish Chander Ahuja v. Sneha AhujaCitation: 2020 SCC Online SC 841Date: 15th October 2020Background:In the present case, one Satish Chander Ahuja filed a suit against his daughter in law, Sneha Ahuja, seeking a permanent injunction and for recovery of damages. The daughter in law had obtained an order directing the Appellant not to alienate the property or dispossess her without the approval of the Court under the Protection of Women from Domestic Violence Act. The Appellant contended that the status of occupation of the respondent during the subsistence of marriage with his son could be said to be permissive in nature, and she is not entitled to claim a right of residence against the father-in-law who has no obligation to maintain her during the lifetime of her husband. Whereas the respondent argued that the suit property is a shared household within the meaning of S.2(s) of the Domestic Violence Act and as such she has a right to reside in the shared household. The Appellant relied on the Supreme Court's judgment in S.R. Batra v. Taruna Batra and stated that the suit property is in his name, and the husband does not have any share in the said property. The suit property is also not a joint family property. Issues before the Court:·        Whether shared household within the meaning of Section 2(s) of the Domestic Violence Act can be read to mean that shared household can only be that household which is household of a joint family or in which husband of the aggrieved person has a share?·        Whether judgment in S.R. Batra and Anr. v. Taruna Batra has not correctly interpreted the provision of Section 2(s) of the Act and does not lay down accurate law?Judgement:·        The Supreme Court overturned its judgement in SR Batra v. Taruna Batra and held that a wife has a right to claim residence in a shared household owned by the relatives of the husband.·        While interpreting the definition of shared household under the Act, the Court observed that "it is not the requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly. The household may belong to a joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household; and the shared household may either be owned or tenanted by the respondent singly or jointly."·        The Court observed that the interpretation in the SR Batra case is too narrow and defeats the Act's purpose, and thus, does not lay down the correct position of law.·        The Court held that living off a woman in a household refers to living with some permanency. In ascertaining whether the parties intended to treat the premises as a shared household or not, the intention of the parties and the nature of living have to be looked at.Conclusion: The Hon’ble Supreme Court upheld the opinion of the High Court in set aside the decree of the Trial Court and remanding back  the matter for fresh adjudication.*****

Posted By

Kishan Dutt Kalaskar Retired Judge

4 days ago

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Remedies against harassment by Recovery Agents

There are numerous cases of the oppressive and illegal conduct of recovery agents attempting to recover pending dues for the banks' benefit. In the past few years there have been many such instances, to showcase an example, an 81-year-old woman was seriously threatened by recovery agents, she got 375 threatening calls concerning her child's unpaid bank dues. After that, she moved to the police, and a case was filed against these agents. Another incident quoted as per media reports stated that a private bus was halted, and 42 travellers were held hostage for three hours by recovery agents, who needed to recover money from the travel company that owned the bus. These cases affirm that recovery agents/offices are feared in India.  A recovery agent seeks clients and organizations that owe instalments to banks. Many of these recovery agents collect the banks'clientspayment dues for a charge or a percentage of the total amount owed. These agents are generally a third-party as they are not a part of the original contract.  The individuals not just face humiliation before family or friends, but also face actual dangers. There are a few situations where the clients have committed suicide or faced serious medical conditions because of the recovery agents' threatening conduct.   Harassment  What is considered harassing by a lender? If the lender attempts to do any of the following, it could be viewed as harassment to recover the money owed. These actions include :·        reaching people multiple times each day, or promptly in the first part of the day or the late evening.;·        seeking people on social media platforms, for example, Twitter and Facebook;·        putting pressure on people to sell their home or take out greater credit;·        threatening or continuously contacting relatives of the borrower;·        utilizing more than one debt collector, in turn, to pursue people for instalment;·        using desk work or business logos that give off an impression of being official when they're not, for instance sending people letters that seem as though they represent court forms;·        pressurizing people to pay all the money, or in bigger instalments when they can't afford to;·        attempting to humiliate people in front of the general public;·        telling another person aboutyour debts or using someone else to pass on messages, for example, a neighbour or a relative. What isn't considered harassing by a lender? Not all activities that a lender conducts can be labelled asharassment. Leasers are permitted to find a way to get back the amount customers owe them. These include:  ·        sending updates and demands for instalment  ·        calling at customer's home, as long as this is at a sensible time  ·        making a court motion.   In a judgment (Smart Security Secret Service Agency vs State Bank of India) the High Court of Kerala decided that solid arm strategies to recover credits by Banks and other Financial Institutions are unlawful. Expressing that the use of solid arm strategies was unlawful, deceptive and against the insurance of public interest, notwithstanding being against the general approach, the High Court guided financial organizations to adhere to the fair treatment of law in an authorized way. Likewise, this judgment was sent to the Governor of the Reserve Bank of India (RBI) to guarantee that similar occurrences would not happen later. Although the RBI has laid numerous principles against banks delegating these sorts of recovery agents, these agents are still appointed by the banks.   Legal Remedies  Legal Remedies available to defaulter in the case of harassment by recovery agents ·        Filing a complaint at the police station: A proper complaint should be filed against the Bank and the recovery office. However, if the police do not file a complaint, the magistrate can be approached.  ·        An injunction suit against the bank and recovery agents: A civil injunction suit with an ad-interim relief can be filed in the civil court against the bank and recovery organization. It should be possible to guarantee that bank authorities and recovery agents don't visit a person's home to recover the dues.  ·        File an objection with the Reserve Bank of India: After getting a few public objections against banks and seeing a few cases recorded against the harassing recovery method, the RBI prescribed certain norms for therecovery agents in order to govern the approach towards defaulters. In this manner, if the defaulters feel undermined, they have an option to contact the organization and file a legal complaint. ·        Defamation suit: If the debt recovery depends on incorrect data that prompted the deficiency of a person's CIBIL score, they can file a defamation suit against the bank and recovery organization.  ·        Trespass objection: On the off chance that the recovery agents of the Bank illegally invade someone's home without approved consent, at that point a trespass complaint can be filed against them for disregarding an individual's rights.  ·        Extortion grievance:If  the recovery agents forcefully recovered the money, an extortion case can be filed against. ·        Complaint to your Bank: Practically all banks have a complaint department. The client can move that department and can communicate on this matter. Generally, after recording the grievance, the client needs to wait for 30 days to tackle the matter or get an answer. ·        The banking ombudsman: On the off chance that the Bank does not address the issue/grievance, within the specified days, the banking ombudsman can be approached. RBI selects such individual as a senior authority who redresses the grievances by clients. The ombudsman should give a lawfully binding decision to call for settlement between the Bank and the client. The complaints identified with credit cards are filed with the ombudsman whose territorial jurisdiction the client's billing address is found. Legal remedies accessible to Banks and NBFCs for credit recovery·        When a bank or financial institution needs to recover any individual's debts; it uses Original Application (OA) to the Debt Recovery Tribunal against such individual. ·        The secured lenders reserve a right to implement Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI ACT,2002). It allows banks or other financial institutions to auction private or business properties to recover credits. The provision of the SARFAESI Act, s applicable if the amount of the NPA loan amount surpasses INR One Lakhs and NPA credit account is more than 20% of the principal and interest. ·        Credit taken from the Bank is under an agreement between the Bank and the borrower; hence, the general laws like Law of Contract, Transfer of Property Act, Specific Relief Act, Specific Performance and so on, apply to all banking transactions relying on the nature of the transaction. ·        In India, the remedy accessible to moneylenders is to file an ordinary money suit for recovery against the defaulting borrower for the pending amounts. Legal remedies accessible to corporates for advance recovery·        If the borrower neglects to repay, the company can make legal moves against the borrowers. A summary suit can be instituted under Order 37 of Civil Procedure Court (CPC) in a competent court lying under the jurisdiction. ·        Likewise, the general laws like the Law of Contract, Transfer of Property Act, Specific Relief Act, Specific Performance and so forth, apply to all corporate transactions relying on the idea of the transaction. ·        As an external court settlement, the matter can likewise be settled through Arbitration, under the Arbitration and Conciliation Act, 1996. Court PrecedentICICI Bank vs Shanti Devi Sharma &Ors, 2008: In this landmark judgment, the Supreme Court emphasized its stand that banks can't send musclemen to recover advances from defaulters, subsequently compelling them to take their lives. A Bench consisting of Justices Tarun Chatterjee and Dalveer Bhandari stated that they considered it proper to remind the banks and other financial organizations that we live in a socialized country and are administered by the standard of law. While rejecting the ICICI Bank's plea, the court refused to delete the Delhi High Court's comments that considered the Bank and its musclemen liable for abetting a person to commit suicide by threatening him.As indicated by the court, Reserve Bank's complaints concerning infringement of the above rules and adoption of oppressive practices followed by banks' recovery agents would be seen genuinely. Emphasizing the RBI Guidelines on Engagement of Recovery Agents, the court held that the Reserve Bank might consider forcing a restriction on a bank from engaging with recovery agents in a specific area, either jurisdictional or functional, for a limited period. If there should be an occurrence of tenacious break of the above rules, Reserve Bank may consider expanding the time of ban or the area of the ban.  Justice Bhandari, writing the Bench's decision, expressed that RBI had communicated its concern about the number of prosecutions recorded against the banks in the recent past for engaging with recovery agents who have purportedly abused the law. ICICI Bank had moved the Supreme Court looking for the deletion of certain paragraphs in the High Court order which had said that the general reason for the death of the deceased that drove him to commit suicide was because of humiliation brought about by the Bank. The High Court had noticed that the modus-operandi by the banks like ICICI for the acknowledgement of their advance money and for recovering the ownership of the vehicle against which advances are given extra-legitimate, and in no way, they can be allowed to utilize musclemen and hooligans for the recovery of their loan even from a defaulting party. The High Court order had gone ahead with an appeal filed by Shanti Devi Sharma, the deceased's mom, looking for a probe against the ICICI bank and its staff for the unlawful activity, which prompted the suicide of her 34-year-old child Himanshu Dev Sharma. Sharma committed suicide in October 2005 by hanging himself at his home after he was supposedly threatened and humiliated before his neighbours and family by recovery agents used by the Bank to recover the advance money taken to buy his motorcycle. Conclusion and current normsA bank and corporate organizations' performance analysis can't be exclusively founded on resources mobilized or advances made. Resource mobilization, the arrangement of resources, and reusing resources are three primary places of banking and corporate business tasks. In this way, recovery is similarly a significant action. Any deferral in recovery hampers the reuse of assets, and banks' capacity to restore the advances to financial institutions is also hindered, because of which honest borrowers suffer. Consequently, the quick recovery of credit for the proper working of a business is fundamental. The Reserve Bank of India has issuedrules under Asset Reconstruction Companies (ARCs) to prepare recovery agents not to disturb borrowers by setting up a fair practices code, and a complaint redressal system that will likewise be set up for quicker resolution of genuine objections made by the borrowers, as stated by the RBI. Additionally, RBI held that the ARCs should share the name and number of the assigned complaint redressal official with the borrowers. The mechanism will fundamentally review genuine complaints, which incorporates dealing with administrations furnished by the outsourced office alongside the recovery agents.

Posted By

Kishan Dutt Kalaskar Retired Judge

2 weeks ago

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Advocate Anik


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: Bangalore |

State Bar Council

: Karnataka

Professional Summary

I introduce myself as a post graduate in Business Laws with first class 2nd rank from University Law College (ULC), Bangalore, Karnataka, India, As regards my experience in the dynamic world of law, I have interned and worked in reputed and prestigious law firms and company. My active association with such reputed law firms and Company has given me experience in researching and analyzing core areas of various laws.

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