Will is a Legal Document In India

Will is a Legal Document in India

Will is a legal document that is made by a person who wishes to bequeath his property to certain persons after his death. You have to make a Will to distribute all your financial products and your wealth which were bought by you in the manner you wish to and legally without any fuss to whoever concerned, if not there will be fights over it. First testamentary power of a Hindu was admitted in Bengal. If anyone who does not make a Will then his property will pass on by way of intestate law, so it would be better that one makes a Will which clearly states his intentions on how his property should be transferred. Will, its origin and growth was not known to Hindus until their contact with Muslims grew, who had the knowledge of a Will and thus it helped Hindus in making a testamentary form of writing in relation to their property and thus it became a common practice in India. Will takes effect only after the death of the testator or the person who makes it and it is a unilateral document which can be revoked and changed by the maker at any time and it has been explained under Section 63 of the Indian Succession Act 1925.

Indian Succession Act, 1925 was enacted in India during British period itself and it is applied to all Hindus, Buddhist, Sikh, Jains but does not govern Muslims as they are governed by Muslim Law. Inheritance and succession law is very vast and complicated in nature. Will can be made by any person who is not a minor and of sound mind on a plain paper and which need not be put on stamp paper and you can write it in your own hand writing also. Will is made by a person who after his death entrusts on the living person to carry out his wishes where disposition of his property will take effect only post his death. A person who is making his Will must understand that he will be giving away his property to certain persons and have a complete knowledge of the extent of his total property and also must know the conditions that are put in the Will. A deaf, dumb and blind person can also make a Will if they understand the provisions that are put in the Will but a person who is intoxicated and makes a Will then that Will is invalid. A declaration of the testator to revoke previous Will can be done and only the Will that is prevails in last is can be enforced. A share in the property can be given even to a lunatic, a minor or anyone under a Will.  Just because a Will is lost does not mean that it can be revoked but if it is intentionally destroyed by testator it will be deemed to be revoked.

There are many types of Will like Privileged Will, Conditional Will, Joint Wills, Duplicate Wills, Concurrent Wills, and Holograph Wills. Privileged Will is explained under Section 66 of the Indian Succession Act which states that a soldier in an actual warfare, airmen or marine at sea who execute Wills are privileged wills.  Upon a condition being fulfilled only a Will can be enforced, that is called a contingent Will and if that condition does not occur then the Will cannot be legally enforceable. When 2 or more people jointly make a Will is called a Joint Will which intends to take effect only after the death of all the parties and it cannot be enforced if one party is alive and other dead. A maker of the Will makes a duplicate Will and keeps it in a safe deposit in a bank will be a duplicate Will. If a testator makes a Will that is applied in one country and another Will in another country to dispose of different properties in different country it will be a concurrent Will. A Will that is written completely by ones handwriting is called a Holograph Will. With regard to revocation a Will can be revoked when the testator with his own interest puts it in writing under revocation clause all prior Wills and Codicils made can be revoked.  A deed of revocation can be made in the same way as a Will. A testator can burn, tear the Will to revoke a Will. Any language can be used to make a Will and it can be made in any form but it should be clear and readable to understand its points.

In Narinder Singh Rao vs AvmMahinder Singh Rao &Ors (22 March, 2013) Supreme Court held that a Will has to be attested by two witnesses to be valid and if it is in relation to transfer of property a Will has to be registered. In another case Savithri and others Vs. KarthyayaniAmma and others, (12 October 2007) Court had held that just because natural heirs get lesser share in the property does not mean that there is something suspicious in it.The main work of the court is to determine the actual intention of the testator from the Will.

There is a restriction to transfer of a property through a Will that is made to a person who is unborn as it is invalid. A will that is made through fraud, coercion, undue influence is completely invalid Will. If any Will is not certain and is completely uncertain with regard to its objects and subject then it will be invalid Will. A Will can be void if there is illegal condition in it, like the condition that cannot be executed or which is forbidden by law or against to public policy. Anybody can challenge a Will and they have to prove in the Court that all previous Will supersedes the present Will that is presented by them before the Court. If you create a Will today, it will save your family’s time in future, where they need not run around to lawyers for getting a share in the property, after you leave this world. So do prepare a Will.

Reference:

1. Legal Provisions Regarding Wills in India under the Hindu Law http://www.shareyouressays.com/117177/legal-provisions-regarding-wills-in-india-under-the-hindu-law
2. How to make a will in India and its importance? http://www.jagoinvestor.com/2010/11/how-to-make-a-will-in-india-and-its-importance.html
3. Types of Wills http://www.vakilno1.com/wills/types-of-wills.html
4. Execution Of A Will http://www.legalservicesindia.com/article/article/execution-of-a-will-1143-1.html
5. An Overview of Wills under Hindu Law http://www.legalserviceindia.com/articles/will_hindu.htm
6. Wills Under Indian Succession Act 1925 http://www.helplinelaw.com/real-estate-wills-probate-and-trust/WISA/wills-under-indian-succession-act-1925.html

CONSTITUTIONAL AND LEGAL PROVISIONS FOR WOMEN IN INDIA

 CONSTITUTIONAL AND LEGAL PROVISIONS FOR WOMEN IN INDIA

The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. Within the framework of a democratic polity, our laws, development policies, Plans and programmes have aimed at women’s advancement in different spheres. India has also ratified various international conventions and human rights instruments committing to secure equal rights of women. Key among them is the ratification of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993.

1.           CONSTITUTIONAL PROVISIONS

The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them.  Fundamental Rights, among others, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment.  Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in this regard.

Constitutional Privileges

(i)      Equality before law for women (Article 14)

(ii)          The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of  birth or any of them (Article 15 (i))

(iii)     The State to make any special provision in favour of women and children (Article 15 (3))

(iv)        Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (Article 16)

(v)          The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)); and equal pay for equal work for both men and women (Article 39(d))

(vi)        To promote justice, on a basis of equal opportunity and to provide free legal aid  by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities (Article 39 A)

(vii)    The State to make provision for securing just and humane conditions of work and for maternity relief (Article 42)

(viii)      The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46)

(ix)     The State to raise the level of nutrition and the standard of living of its people (Article 47)

(x)      To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A) (e)) 

(xi)     Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243 D(3))

(xii)    Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243 D (4))

(ix)        Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality (Article 243 T (3))

(x)          Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide (Article 243 T (4)) 

2.           LEGAL PROVISIONS

          To uphold the Constitutional mandate, the State has enacted various legislative measures intended to ensure equal rights, to counter social discrimination and various forms of violence and atrocities and to provide support services especially to working women.

          Although women may be victims of any of the crimes such as 'Murder', 'Robbery', 'Cheating' etc, the crimes, which are directed specifically against women, are characterized as 'Crime against Women'. These are broadly classified under two categories. 

(1)         The Crimes Identified Under the Indian Penal Code (IPC)

(i)           Rape (Sec. 376 IPC)

(ii)          Kidnapping & Abduction for different purposes ( Sec. 363-373)

(iii)        Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)

(iv)        Torture, both mental and physical (Sec. 498-A IPC)

(v)          Molestation (Sec. 354 IPC)

(vi)        Sexual Harassment (Sec. 509 IPC)

(vii)       Importation of girls (up to 21 years of age)

(2)         The Crimes identified under the Special Laws (SLL)

Although all laws are not gender specific, the provisions of law affecting women significantly have been reviewed periodically and amendments carried out to keep pace with the emerging requirements. Some acts which have special provisions to safeguard women and their interests are:

(i)           The Employees State Insurance Act, 1948

(ii)          The Plantation Labour Act, 1951

(iii)        The Family Courts Act, 1954

(iv)        The Special Marriage Act, 1954

(v)          The Hindu Marriage Act, 1955

(vi)        The Hindu Succession Act, 1956 with amendment in 2005

(vii)       Immoral Traffic (Prevention) Act, 1956

(viii)      The Maternity Benefit Act, 1961 (Amended in 1995)

(ix)        Dowry Prohibition Act, 1961

(x)          The Medical Termination of Pregnancy Act, 1971

(xi)        The Contract Labour (Regulation and Abolition) Act, 1976

(xii)       The Equal Remuneration Act, 1976

(xiii)      The Prohibition of Child Marriage Act, 2006

(xiv)      The Criminal Law (Amendment) Act, 1983

(xv)       The Factories (Amendment) Act, 1986

(xvi)      Indecent Representation of Women (Prohibition) Act, 1986

(xvii)    Commission of Sati (Prevention) Act, 1987

(xviii)   The Protection of Women from Domestic Violence Act, 2005  

3.           SPECIAL INITIATIVES FOR WOMEN

(i)           National Commission for Women

In January 1992, the Government set-up this statutory body with a specific mandate to study and monitor all matters relating to the constitutional and legal safeguards provided for women, review the existing legislation to suggest amendments wherever necessary, etc.

(ii)          Reservation for Women in Local Self -Government

The 73^rd Constitutional Amendment Acts passed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas.

         

(iii)         The National Plan of Action for the Girl Child (1991-2000)

The plan of Action is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future for the girl child.

         

(iv)     National Policy for the Empowerment of Women, 2001

The Department of Women & Child Development in the Ministry of Human Resource Development has prepared a “National Policy for the Empowerment of Women” in the year 2001. The goal of this policy is to bring about the advancement, development and empowerment of women.

Bill to make divorce easier may be dropped

Bill to make divorce easier may be dropped: Concerned about “illegitimate and live-in relationships,” the NDA government may reverse a process set in motion by the UPA government to make getting a divorce easier for Hindu couples. Following

Groups opposing the Marriage Laws (Amendment) Bill contend that it will cause an increase in "illegitimate and live-in relations and thereby a fall of the institution of marriage and family values."

Concerned about “illegitimate and live-in relationships,” the NDA government may reverse a process set in motion by the UPA government to make getting a divorce easier for Hindu couples.

Following several years of discussion, the UPA government introduced the Marriage Laws (Amendment) Bill, proposing amendments to the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, to make “irretrievable breakdown of marriage” a ground for divorce. The Bill was passed by the Rajya Sabha in 2013, but could not be taken up for discussion in the Lok Sabha.

Though the present government had initially considered tabling the Bill again, Law Minister Sadananda Gowda, in response to a question in the Lok Sabha on December 18, 2014, admitted that the government was having second thoughts about it. He said the government was examining the implications of bringing the Bill as more than 70 representations had been received against it from senior citizen groups and non-governmental organisations such as Save Indian Family and Centre for Reforms. Save Indian Family is an umbrella organisation of various groups which fight for men’s rights.

“In these representations, grave and far-reaching legal, social and economic implications of the proposed amendments to marriage laws have been raised,” Mr. Gowda said.

These groups contend that such an amendment will bring down the marriage rate in the country.

Bill sought to remove lacuna

Groups opposing the Marriage Laws (Amendment) Bill contend that it will cause an increase in “illegitimate and live-in relations and thereby a fall of the institution of marriage and family values.”

They fear crime rate and undue litigation will increase.

“In this background, the government is examining the aforesaid implications alleged to be involved in the proposal to amend the marriage laws,” Law Minister Sadananda Gowda said.

Under the current law, divorce is granted if a couple jointly files an application by mutual consent. In case the divorce is contested, then the husband or the wife has to prove certain grounds under which a marriage can be dissolved.

These include adultery, cruelty, insanity, desertion or medical reasons such as communicable disease. The Amendment Bill essentially sought to remove this lacuna by allowing either the husband or the wife to contend that there has been an irretrievable breakdown in the marriage.

Under the law, any one party can file for divorce on this ground after a three year period of separation.

The wife also has the right to contest a divorce if she can prove she will be in grave financial hardship. The first proposals for amendments to the Hindu Marriage Act came from the Law Commission in 1978. Since then the Supreme Court has on a number of occasions recommended the inclusion of irretrievable breakdown of marriage as a ground for divorce.