Saturday, 22 November, 2008

Estranged Wife Entitled to House

    Estranged Wife Entitled to House

    The Supreme Court India has ruled that husband paying monthly maintenance to cover food, clothing and other expenses of estranged wives now include provision for a house akin to the husband's. A Bench comprising Justices Arijit Pasayat and Mukundakam Sharma, ruling in favour of Komal Amma from Kerala who struggled to find a house for herself after estrangement said, "Maintenance, as we see it, necessarily, must encompass a provision for residence." The bench also added, "Maintenance is given so that the woman can live in the manner, more or less, to which she was accustomed."

    In its significant ruling, the bench said, "The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head." This helps estranged wives lead a normal life without feeling the pinch.

    Therefore, if the couple was living in a posh locality, then after estrangement, the husband is bound to give a sum along with maintenance that would enable her to rent a house in a similar locality.

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Thursday, 13 November, 2008

“Outsourced Pregnancies” (Surrogacy)

“Outsourced Pregnancies”

Surrogacy is subject that is widely discussed amoung issue-less couples all over the world. Hon. Supreme Court of India has made certain observations about Surrogacy. Following is an extract from the judgment delivered by his Lordship Dr. Arjith Pasayath of the Supreme court of India very recently.

“ Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have child that is biologically related to them. The word “surrogate”, from Latin “subrogate”, means ‘appointed to act in the place”. The intended parent(s) is the individual or couple who intends to rear the child after its birth.

“ In “traditional surrogacy’ (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh of frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination )which is performed at a fertility clinic’.

“ In “gestational surrogacy” (also known as the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother . She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is themselves unrelated to the child (e. g. because the child was conceived using egg donation, germ donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.

“Altruistic surrogacy” is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).

“Commercial surrogacy” is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms “wombs for rent”, “outsourced pregnancies” or “baby farms”.

“ Intended parents may arrange a surrogate pregnancy because a woman who intends to parent is infertile in such a way that she cannot carry a pregnancy to term. Examples include a woman who has had a hysterectomy, has a uterine malformation, has had recurrent pregnancy loss or has a health condition that makes it dangerous for her to be pregnant. A female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy.

“Alternatively, the intended parent may be a single male or a male homosexual couple.

“ Surrogates may be relatives, friends, or previous strangers. Many surrogate arrangements are made through agencies that help match up intended parents with women who want to be surrogates for a fee. The agencies often help manage the complex medical and legal aspects involved. Surrogacy arrangements can also be made independently. In compensated surrogacy the amount a surrogate receives varies widely from almost nothing above expenses to over $ 30,000. Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks.”

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Monday, 5 May, 2008

Is There Expiry Date For Stamp Papers ?

Documents like Agreement, Sale Deed, Gift Deed, Exchange Deed, Mortgage Deed, Lease Deed etc are to be drawn on Stamp Papers of requisite value as prescribed from time to time and every stamp paper will contain the date of its purchase.

Is there any expiry date for stamp papers ? or in other words does law insist that the stamp paper used for preparing a document should be purchased with in any particular time limit ? A division bench of the Hon. Supreme Court of India has ruled on 19th February 2008 that the Indian Stamp Act nowhere prescribes any expiry date for use of a stamp paper. The Stamp Act has stipulated that if refund of the value of any unused stamp paper is to be claimed such stamp paper must be surrendered to the concerned authority with in six months from the date of its purchase. That apart, there is no time limit for using the stamp paper after it purchase . According to the Supreme Court “there is no impediment for stamp paper purchased more than six months prior to the proposed date of execution, being used for a document”.( 208 (2) KLT 267) The same dictum is applicable under the Kerala Stamp Act also.

Friday, 2 May, 2008

Can a Divorced Wife Claim Maintenance From Her Ex-Husband ?

Section 125 of the Code of Criminal Procedure 1973 empowers a magistrate of the first class ( now a Family Court) to order maintenance to wife, children and parents. As per Section 125 (b) a “ wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.

Whether a divorced wife is entitled to claim maintenance from her former husband has been

a subject-matter for judicial decisions by Courts on many occasions. Recently Hon’ble Mr. Justice R. Basant of the Hon. High Court of Kerala in the case Sajeev Kumar Vs. Dhanya has reiterated the earlier judicial stand on the subject in favour of the divorced wife.

In the case of Sajeevkumar his wife had ‘suffered’ a divorce due to her own fault. Divorce was granted on the ground that the wife had ‘deserted’ the husband. After the divorce the divorced wife filed an application for maintenance for herself and her child. The ex-husband resisted the claim that the divorce itself was due to the fault of the wife. The Family Court did not accept the contention of the divorced husband. It was further contended by the husband that the divorced wife has sufficient income to maintain herself and her child. Another contention of the husband was that he does not have sufficient income to pay separate maintenance to the divorced wife who lives separately . All those contentions were rejected by the Family Court and the Court directed the ex-husband to pay maintenance @ Rs. 1,500/- and Rs. 750/- per mensem respectively to the divorced wife and her child. The husband moved the Hon. High Court in Revision and the Hon. Single Judge upheld the decision of the Family Court

Tuesday, 29 April, 2008

THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007

THE MAINTENANCE AND WELFARE OF PARENTS AND

SENIOR CITIZENS ACT, 2007

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 makes it a legal obligation for children and heirs to provide maintenance to senior citizens. The Act was published in Gazette of India on 31.12.2007. The ACT is to be enforced by the State government concerned. The date on which the Act will come into force will be notified by the State government concerned in the Official Gazette.

State governments may set up maintenance tribunals in every sub-division to decide the level of maintenance. Appellate tribunals may be established at the district level.

Senior citizens who are unable to maintain themselves shall have the right to apply to a maintenance tribunal seeking a monthly allowance from their children or heirs.

If the senior citizen has transferred by way of gift or otherwise, his property, subject to the condition that the relative shall provide the basic amenities and basic physical needs to the senior citizen and such relative refuses or fails to provide such amenities and physical needs the said transfer of property shall be declared void by the Tribunal, if the senior citizen so desires . Here is the full text of the Act :

Thursday, 13 March, 2008

How much land can one legally own and hold in Kerala? The land ceiling provisions under the Kerala Reforms Act

How much land can one legally own and hold in Kerala ?

The land ceiling provisions under the Kerala Reforms Act

The Kerala Land Reforms Act (KLR Act) came in to force in the year 1964. In the national level the major objective of Land Reforms have been the re-ordering of agrarian relations in order to achieve an egalitarian social structure. Elimination of exploitation in land relations, realising the age old goal of land to the tiller, enlarging the land base of the rural poor, increasing agricultural productivity and infusing an element of equality in local institutions are some of the other major objectives of Land Reforms.

With a view to achieve the said objectives KLR Act imposes certain restrictions on ownership and possession of landed properties in the State of Kerala. There is what is commonly known as ‘ceiling’ on the total extent of land that a “person” can hold. The word “Person” in this context means and include a Company, family, joint family, association or other body of individuals, whether incorporated or not, and any institution capable of owning property.

In the case of an adult unmarried person or a family consisting of a sole surviving member the ceiling limit is five standard acres subject to a maximum of seven and a half acres. A family consisting of two or more but not more than five members can hold ten standard acres and up to a maximum of fifteen acres. A family consisting of more than ten members the limit is ten standard acres increased by one standard acre for each member in excess of five and the maximum limit is twenty acres. In the case of any other person including a Trust, Company, body of individuals etc the limit is ten standard acres subject to a maximum of fifteen acres.

The term ‘standard acre’ is determined based on the nature of the cultivation in a particular land and it slightly varies from District to District .In the case of garden land principally used for growing coconut trees one acre is treated one standard acre. But in the case of land principally used for growing arecanut trees ½ Acre ( 50 cents) is treated as one standard acre. On the other hand in the case of land used principally for growing pepper vines 3.50 acres is treated as one standard acre. In the case of dry land principally cultivated with cashew two acres is one standard acre. In the case of other dry land 2.50 acres is treated as one standard acre. In the case of palliyal land ( land used to raise paddy seedlings) 3 acres is one standard acre.

There are however exceptions to the above rules. The principal exceptions are Plantations, Private Forests, Government lands, house sites, commercial sites, lands owned by Mosque Temples, Universities, Public Trusts etc. In order to qualify for exemption it is to be proved that a particular plantation was in existence prior to
the promulgation of KLR Act on 01.04.1964. Rubber, Tea, and Cardamom are the principal plantations that are exempted from ceiling limits.
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