Maintenance & Welfare of Parents & Senior Citizens Act, 2007( Central Act 56 of 2007)
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Central Act 56 of 2007 was implemented in the State of Kerala with effect from 29.08.2009 ‘Kerala Maintenance and Welfare of Parents and Senior Citizens Rules 2009’ also was promulgated on 29.08.2009.
Revenue Divisional Officers (RDO) are appointed as presiding officers of Maintenance Tribunal under the Act for each Sub-division. District Collectors are appointed as presiding officers of Appellate Tribunal for each District. District Welfare Officers are designated as Maintenance Officers for each District. Panel of Conciliation Officers as contemplated under Section (6)6 of the Act is yet to be prepared and published.
Section 4 of Act provides that a senior citizen or parent unable to maintain himself/herself may make an application for maintenance to the Maintenance Tribunal. Such applications are to be filed in the case of parent or grand parent against one or more of his children and in the case of child less senior citizen against the relative who under law would inherit his property. The application is to be filed in form No. ‘A’ appended to the Rules. The Tribunal may also initiate proceedings for maintenance suo moto. On receipt of the application the same has be referred to Conciliation Officer who has to hold meetings with the two parties. With in one month of receipt of the reference the Conciliation officer shall return the papers received by him with report of settlement formula if any arrived by him or with a report of the steps taken by him for a settlement.
If the Conciliation Officers reports settlement the Tribunal shall pass a final order in termsof the settlement. If no settlement is reported the Tribunal has to pass an order for maintenance making in to consideration the following aspects :
specially food, clothing, accommodation, and health care;
The maximum amount that the opposite party may be ordered to pay is presently fixed as Rs 10,000/- ( Rupees ten thousand only)
Provisions are also there for preferring appeal against the orders passed by the Tribunal.
There is also bar for Lawyers for appearing for or against any of the parties before the Tribunal.
Power-of-Attorney For Registration Documents
Section 32 of the Indian Registration Act requires that documents meant for registration are to be presented for the said purpose at the proper registration office. Documents are some times executed and signed by the power-of-attorney agents of the concerned principals and the same power-of-attorney agents present such documents for registration. On the other hand law permits a person to execute and sign documents personally and delegate an agent for presenting such documents for registration. In the first instance execution and registration of the document are by the same person – the duly authorized agent. In the second case, execution of documents is by the author of the document personally but the registration process is completed by an agent. In both cases authority is to be delegated by a duly executed power-of-attorney.
Now the question arose whether power-of-attorneys issued for the purpose of executing and registering documents are to be registered compulsorily. The Hon. Supreme Court of India in the judgment delivered in C A No.xxxx/2004 ( Rajni T Vs Dulal R G) decided on 29th July 2009 has finally resolved the said issue.
Hon. Supreme Court has made a distinction between the Power-of-attorney meant for execution and registration of documents and the power-of-attorney meant only for registration of documents already executed and signed by its maker and has made it clear that power-of-attorneys of the first category need not compulsorily be registered while power-of-attorneys of the second category are to be registered compulsorily.
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Plea of Cruelty in Matrimonial Cases .
…unsubstantiated allegations of unchaste and adulterous behaviour by a husband against the wife in the Indian context do amount to matrimonial cruelty”
An India lady (wife) working abroad* approached Family Court in India seeking dissolution of marriage with her husband who also is in the same country*. The parties had contracted marriage in India according to Christian Rites.
Wife had made specific allegations of infliction of physical cruelty consequent to allegations of unchaste and adulterous behaviour. The wife alleged that the husband was making reckless allegations of pre-marital licentious behaviour and post marital adulterous and unchaste behaviour. The wife had been compelled and driven to courts in Switzerland to seek separation and police protection to save herself from the matrimonial cruelty allegedly heaped on her by her husband. Finally the wife approached Family Court in India seeking dissolution of marriage.
Husband also entered appearance before the family court opposing dissolution of marriage but at the same time repeating the allegations against the wife. However the husband could not substantiate his allegations before the Family Court. Even in Court the husband continued to make assertions of such licentious behaviour pre-marital and post-marital on the part of the wife ; but he did not even attempt to substantiate those allegations before court.
Family Court came to the conclusion that except the vague allegations of the husband there was absolutely nothing even to indicate, suggest or probabilise such allegations of improper marital conduct and behaviour on the part of the wife. The view taken by the Court was that unsubstantiated allegations of unchaste and adulterous behaviour by a husband against the wife in the Indian context do amount to matrimonial cruelty and dissolution of marriage under S.10 of the Indian Divorce Act was allowed.. The view taken by the Family Court was confirmed by the Hon.High Court of Kerala also. Cfr., 2009 (3) KLT 786.The Kerala Law Reforms Commission
The Government of Kerala undertook law reforms as a high priority item on the agenda of the Government and after detailed discussions with eminent persons in this regard the Law Reforms Commission for the State of Kerala was constituted on 26.11.2001.
The following eminent persons were the initial members of the Law Reforms Commission :
1. Mr. Justice V.R.Krishna Iyer - Chairman
(Former Judge, Supreme Court)
'Satgamaya',
M.G.Road, Ernakulam, Kochi-682 011
2. Mr.Justice T.V. Ramakrishnan
(Former Judge, High Court of Kerala)
'Anugraha, P.J.Antony Ground Road, Pachalam, Kochi-682 012
3. Mr.Justice C.S Rajan, - Member
(Former Judge, High Court of Kerala)
'CHIT-KOD', House No.40/897,
Ashramam Lane, Azad Road, Kochi - 682 017
4. Shri. T.P. Kelu Nambiar
(Senior Advocate),
Anamika,Karakkat Road,
Kochi-16
5. Shri .Varkala Radha Krihnan. M.P
'Rajendra,Thycadu P.O,
Thiruvananthapuram.
6. Dr. Sebastian Paul M.P
376/D-Moonjappilli House,
St.Francis Xavier Church Road,
Kochi-18
7. Dr. N.K.Jaya Kumar,
(Secretary, Legislative Assembly)
8. Sri.P.S.Gopinathan,
(Secretary, Law Department)
The terms of reference of the Commission were as follows.
a. To rectify defects in the existing Laws.
b. To repeal obsolete or unnecessary enactments.
c. To consolidate, modify and reform the existing Laws.
d. To simplify or modernize the Laws.
e. To adopt new and more effective methods for the administration of the
Law.
f .To systematically develop and reform the law.
g. To provide training to the officers for legislative drafting.
h. To provide training for the legislators in the legislative process.
i. Matters to be implemented jointly by the Legislature, Parliamentary Affairs Department and Law Department regarding Legislation
j. Steps to be taken by various Government Departments regarding legislation.
k. Other matters to be considered in the field of legislation in the new world order.
l . Other matters referred to the Commission by the Government within its period, regarding Law reforms.
Thirty more members were later on included in the Commission. The Commission submitted its report to the Government on 26.01.2009 . The Report has mixed reactions and some of the proposals have staunch opposition from many quarters .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.
“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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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.
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.
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 :
How much land can one legally own and hold in Kerala ?
The land ceiling provisions under the Kerala Reforms Act
In the Union Budget 2007-08, a proposal to introduce 'Reverse Mortgages' in India was put forth. The concept of reverse mortgage, although new in India, is very popular in countries like the United States.
A reverse mortgage allows the property owner, to access some of the value of the property without selling it. You remain the owner with all your current obligations. And you get a cash stream from your property. When the reverse mortgage agreement is over you or your heirs must repay all of your cash advances plus interest.
In a regular mortgage, a borrower mortgages his new/existing house with the lender in return for the loan amount (which in turn he uses to finance the property); the same is charged at a particular interest rate and runs over a predetermined tenure.
The borrower then has to repay the loan amount in the form of EMIs (equated monthly installments), which comprise of both principal and interest amounts. The property is utilised as a security to cover the risk of default on the borrower's part.
In the reverse mortgage, senior citizens (borrowers), who own a house property, but do not have regular income, can mortgage the same with the lender (a scheduled bank or a housing finance company-HFC). In return, the lender makes periodic payment to the borrowers during their lifetime.
Reverse mortgage works like a pension scheme for the elderly who live in a house owned by them। It is the opposite of buying a house on loan, where you pay an EMI (equated monthly instalment) to your bank. Technically, till you repay the loan, the house belongs to the bank. In reverse mortgage, you agree to mortgage your house to the bank, for which, it pays you the proceeds in equal monthly payouts. (Read more)
The Hon. Supreme Court of India in the judgment passed in “ Seema Vs Ashwini Kumar” held that marriages of persons who are citizens if India belonging to various religions should be made compulsorily registrable in their respective States, where in the marriage is solemnized and the Apex Court directed the Sates and the Central Government to take the necessary steps for implementing the Court’s direction. Accordingly on 16.11.2006 the Government of Kerala published in the official Gazette the following Rules for implementing the directives of the Supreme Court. These Rules are to come into force after the expiry of sixty days from the date of publication.
(Read more)Publish
Proposals for Personal Taxes
Joint family System amoung Hindus of Kerala was abolished with effect from 01.12.1976 by Act 30 of 1976. Thereafter birth in family does not give rise to rights in property .On and after the commencement of this Act, one has no rights to claim any interest in any property of an ancestor during his or her lifetime which is founded on the mere fact that the claimant was born in the family of the ancestor shall be recognized in any court. Joint tenancy was replaced by tenancy in common:
(1) All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act came into force would be deemed to hold it as tenants-in-common as if a partition has taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof. This however does not affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, of the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately, and any such right can be enforced as if this Act had not been passed. (....read more)
Title to immovable property is ascertained by perusing relevant “Documents” and “Deeds” pertaining to such property. The term “Document” has very wide import. Under general law ‘document’ means any matter expressed or described up on any substance by means of letters, figures or mark for the purpose of recording that matter. The dictionary meaning of ‘document’ is “a deed, writing, inscription, that furnishes evidence. This would mean that even a piece of paper on which something is written or typed or printed is to be treated as ‘document’. With the introduction of Cyber law, electronic documents are also now legally recognised in our country as having evidentiary value.
“A boon to the Indian Women, but a potential bane to the Indian Banker"
The Protection of Women from Domestic Violence Act 2005 ( DVA) came into force 26.10.2006. It is widely expected that DVA will go a long way to provide relief to women from domestic violence and enforce their ‘right to live’. Primarily DVA is meant to provide protection to the wife or female live-in partner from violence at the hands of husband or male live-in partner or relatives. DVA also extends its protection to women who are sisters, widows or mothers.
However in spite of the positive aspects enshrined in the enactment for protecting women’s rights DVA can have a negative impact on the real estate scenario especially on transactions of house-properties. DVA also can adversely affect (Public) Financial Institutions ( FIS) that now unhesitatingly advance hefty sums on the mortgage security of house-properties both for productive and non-productive purposes. See how and to what extent DVA can adversely affect FIS .
...read full article at our website
When does it come into force?
It comes into force on the 12th October, 2005 (120th day of its enactment on 15th June, 2005). Some provisions have come into force with immediate effect viz. obligations of public authorities [S.4(1)], designation of Public Information Officers and Assistant Public Information Officers[S.5(1) and 5(2)], constitution of Central Information Commission (S.12 and 13), constitution of State Information Commission (S.15 and 16), non-applicability of the Act to Intelligence and Security Organizations (S.24) and power to make rules to carry out the provisions of the Act (S.27 and 28).
Who is covered? The Act extends to the whole of
What does information mean? Information means any material in any form including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force but does not include "file notings" [S.2(f)].
What does Right to Information mean? It includes the right to -
inspect works, documents, records.
take notes, extracts or certified copies of documents or records.
take certified samples of material.
obtain information in form of printouts, diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts.[S.2(j)]
Ministry of Personnel,Public Grievances and Pensions, Govt. of
“Kanam” was one of the modes of land tenures prevalent in the erstwhile Malabar including the present Kozhikode District. It was the ‘highest’ form of tenancy. The holder of Kanam right in course of time acquired superior powers as against the real owner who had granted the kanam right.
Kanam entrustment was usually for a period of twelve years. Kanom entrustment was renewable at the option of the tenant after the expiry of 12 years The holder was free to make any improvement in the Kanam property and enjoy the fruits of the same by paying a comparatively small amount as yearly rent and a nominal share of the crops. If the land lord desired to resume the land at the expiry of the lease-period , he had to pay the full value of all the improvements made by the holder of Kanam. It was also a transferable right. The net result was that in most cases landlords were totally incapable of resuming the land after paying value of improvements to the Kanamdar ( lessee ) and the Kanamdar in most cases became richer and more powerful than the land lords and “Kanam” right became more valuable than the Jenm right itself. For, the Jenmi ( land lord) could claim right over the ‘land’ only while the Kanamdar had the full right over the trees, structures , buildings etc on the Kanam land. It was very easy to purchase the Jenm right of a land while very many could not afford to purchase the improvements that belonged to the Kanamdar.
After the said date the land lord’s right had to be purchased through Land Tribunals established for the said purpose . By virtue of the provisions of the said Act landlords were permanently barred from resuming leasehold properties including Kanam lands .Even the Government could not resume any agricultural land from the person in possession except on the ground that such person holds land in excess of the ceiling limits.
Jenm right is granted to cultivating tenants by “Certificates of Purchase ” issued by Land Tribunals. Since absence of Certificate does not affect the title and enjoyment of the property many people have not come forward to purchase the Jenm right. And absence of Jenm right does not affect the title over land in any way. Land Tribunals in the State are being closed down one after the other due to lack of sufficient work for the staff.
Certificates of Purchase issued by Land tribunals are treated as pucca Title Deeds. In the absence of any registered title deed, Certificate of Purchase alone is the document of title for all practical purposes like sale , mortgage etc. Hence it is the duty of any Purchaser or Mortgagee of immovable property to call for Certificate of Purchase also and obtain custody of the same, if available, in order to avoid any future disputes. However if it is assured that Certificate of Purchase is not issued at all in a particular case, the mortgagee/purchaser can proceed with the proposed transaction Hence absence of Certificate of Purchase is not a defect in title , while it will be treated as a lapse on the side of the mortgagee/transferee if Certificate of Purchase already issued also is not obtained and kept along with the registered Title Deed.
