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This article is written by Yash Soni, a 2nd-semester LL.B student of CSJM University. In this article, he has tried to explain Assault, Battery, and Mayhem along with the distinction between them.

Introduction

Assault and Battery are two terms which are often used synonymously. In one’s mind, the term ‘assault’ means to physically hit or injure someone, but it is not so. They are two distinct terms. Where ‘Battery’ means any act of physical force upon another person, Whereas, ‘Assault’ means attempting battery or making one to believe that an act of battery is about to occur.

There is also another term which is related to Assault and Battery, which is known as ‘Mayhem’. ‘Mayhem’ is an offence against the person when an offender deprives his victim of a member of his body in order to make such a victim unable to defend himself. In this article, we’ll further discuss these terms in detail and will also try to differentiate between these terms.

Assault

According to Dr Winfield, Assault is an act of the suspect that causes within the mind of the complainant cheap apprehension of the infliction of a battery on him by the suspect. An Assault is an effort or supply to use force to another person’s body. Anyone, who advisedly brings any material object into a contract.

For Example- 1-to throw a stone or water upon an individual, 2- to tug a chair beneath him 3- whereby he falls to the ground 4-  strike any individual, all together in these cases, one person brings some material objects like a stone or a stick. These in contract with another person. In assault, the force isn’t applied however solely an effort is made.

Assault is outlined beneath in section 351 of Indian Penal Code that states that ‘ Whoever makes a gesture, or any preparation intending or knowing it to be doubtless that such gesture or preparation can cause a person to apprehend that who makes that gesture or preparation is on the brink to use criminal force thereto’, is claimed to commit an assault.

The assault should be intentional

A mere gesture not showing an intention to use force instantly isn’t an assault. The well-known case of Tuberville v. Savage [(1669) one Mad three ] is an example to show force destitute of intention to hold it out. The words, “Were it not assize (trial time) time I’d tell more of my mind”, after putting the hand on the sword, weren’t held to be assault. In this case, the speaker meant that it had been assize time and violence therein time was severely punished, so he couldn’t structure his mind to use the sword. In short, an assault is an intentional act of putting another person in reasonable fear of the appliance of force, eg- striking with a stick.    

Ingredients:

• Making of any gesture or Preparation by an individual within the presence of another.
• Intention or the probability that such gesture or preparation can cause the person to apprehend that the person creating it on the brink to use criminal force on him.

In the case of N.Arumgam v. A.V.M. Vilachanny 1994, the defendant pointed a loaded revolver at the litigant threatening to shoot him however before he may shoot, the litigant managed to flee. Held, it might not be an offence to commit murder, however, it might be an offence of assault beneath Section-351.

Battery

According to Salmond: ” Battery is that the application of force to the person of another with none lawful justification”.

The battery is an accomplished assault. The gesture to strike with a stick is an assault. The applying of even the slightest quantity of force is unjust. The battery wants to not be in the middle of bodily damage. Even to Slightly touch an individual without his consent or the other justification may be a battery.

It is to be noted that the battery is often without the consent of the person injured. If there’s his consent, it’ll not amount to a battery, so a beating suffered voluntarily isn’t unjust.

Ingredients:

• Use of Force
• Force should be intentional
• Without lawful justification

Battery like all suits in trespass is unjust intrinsically i.e., while not proof of injury,i.e., physical injury. In case Swarup avatar v. Gabardhan Das AIR 1956, the suspect of sixteen years old age, abused the complainant on his face within the presence of a known crowd. The suspect committed assault in an outrageous manner and utter disrespect of his right. Through the act of the suspect failed due to a lot of physical injuries. It had been an insult to the plaintiff’s dignity. It was ordered that the exemplary harm of Rs.100/- awarded to the complainant was correct and in ordinary.

What is the differentiation between Assault and Battery?

To comprise A battery, a real agreement is significant, regardless of whether it’s a quick use of physical force with the help of some item. Be that as it may, in an ambush, the genuine substantial agreement isn’t essential and in this manner the demonstration of the respondent which makes a reasonable worry of the utilization of force against comprise attack, regardless of whether the force has not been utilized. For eg-to toss, a stone is an ambush and on the off chance that the stone falls upon him, at that point it turns into A battery. Additionally to shape a horse run towards an individual might be an attack however to frame the horse run over him is a battery.

Mayhem

Mayhem maybe a tort that causes severe injury to the victim in such a way he’s unable to defend himself from the tortfeasor. It’s closely intertwined with assault and battery. While assault refers to the threat of battery, and the battery is the physical usage of force against an individual, Mayhem deals with the disfigurement or loss of any part to physical injury caused by the tortfeasor. The disabling of an arm, hand, finger, leg, foot, or eye are examples of mayhem. To be guilty of the criminal offence, one shall dismember the victim or must assault him so recklessly on creating the danger of dismemberment albeit not meaning to cripple.

Several jurisdictions don’t consider the difference between mayhem and battery, but rather count mayhem as a sort of ‘aggravated battery’ as in developed countries like Japan.  

The U.S considers mayhem as a felony. The concept of Mayhem is often understood through subsequent cases –

• In Case Fetter v. Beale [91 Eng. Rep. 1122] – The plaintiff had recovered damages from the defendant for the action of battery. Shortly thereafter, ‘Part of his skull came out of his head due to the said battery’, and therefore the plaintiff brought a subsequent action under mayhem. Through this case, the scope of mayhem was also expanded to the loss of the Skull.
• In Case Garrett v. Taylor [(1676) 81 ER 726] – it had been held that a quarryman had an explanation for his action against the defendant which had caused the plaintiff’s customers to discontinue buying the quarried stone by threatening them with ‘mayhem’.

Difference Between Assault, Battery and Mayhem

Assault is an action that causes fear within the mind of the victim that an act of battery is close to taking place; Battery refers to the act of striking someone with physical force and no lawful justification. Mayhem refers to the act of crippling someone and rendering them defenceless. Assault generally refers to only intended to cause harm, whereas both in battery and mayhem, inflict physical injury occurs upon the victim. Assault takes before the crime of battery is committed and mayhem may be a severe sort of battery. These 3 torts are related to one another and form an integral part of criminal and tort law.

References

• Dr J.N Pandey, Law of torts 2014
• Prof. S.N Misra, Indian legal code ordinal Edition.
• Bare Acts

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This article has been authored by Ritesha Das, pursuing BBA LLB from Symbiosis Law School Hyderabad. It aims to analyse the Concept, Formalities, Capacity and Revocability of Hiba.

INTRODUCTION

The notion of ‘Gift‘ or ‘Hiba’ persisted in Muslim law from the foundation of the religion. While the acknowledgement of the distinction of land into property or estates is subjected to authentication, the Muslim Law does acknowledge the variance between ownership of the land and its right to enjoy it. The term gift denotes a transfer of the benefit and interest of a property from one person to another without consideration. It’s gratuitous and inter-vivo in nature. This is the general concept that all religions acknowledge including Muslim law. According to the Muslim Law, a gift is termed as ‘Hiba’. Although the word ‘Gift‘ and ‘Hiba‘ are frequently interchanged without drawing the line of differentiation, but the term ‘Hiba’ is just one of the forms of transactions which is transferred without any consideration, often addressed under the broader expression of ‘Gift‘. The ambit of ‘Hiba‘ often forbids all kinds of services as they do not occur at the time of the promise, rather they are only rendered after the promise has been made. The sphere of ‘Hiba‘ mandates the physical existence of the object at the time of the gifting. This has been widely interpreted that the expression of ‘mal’ must refer to the gifted object for the applicability of the rules of ‘Hiba‘ under Muslim Law. A gift by a Muslim in favour of his co-religionist must be under the Mohammedan Law.  Under Muslim law, the expression of ‘gift’ is subjected to certain principles of the contract act as it constitutes an offer (ijab), acceptance (qubul) and transfer (qabza) 

One of the primary essentials of gift constitutes the reciprocal actions of giving or taking. According to Section 122 of the Transfer of Property Act, “a gift is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the done”. The essential elements of a gift are composed of: The donor, The donee, Subject matter, Absence of consideration, Transfer and the acceptance.

In order to constitute a valid gift, acceptance of the donor is a necessary attribute. There are various circumstances shedding light on the dimension of the absence of any specific style of acceptance. The matter of acceptance may be determined by various circumstances, such as taking possession of a property or being in possession of a gift deed alone. If a gift document is handed over after being executed or registered in the favour of donee by the donor, the acceptance of the document leads to a valid acceptance of the gift in law. The precise recital in the act that the grant of possession gives rise to a presumption of acceptance. 

CONCEPT OF HIBA

In the Mohammedan law, a gift is a transfer of property or right by one person to another in accordance with the provisions given in the Mohammedan law and includes-

a) A ‘Hiba‘, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return and

b) An Shariat, the grant of some limited interest in respect of the use or usufruct of some property or right.

Where a gift of any property or right is made without consideration with the object of acquiring religious merit, it is called Sadaqah.

Hiba is a transfer of property by the action of both the parties. It is neither operated nor intervened by law; hence any transfer of property done by the intervention court of law or any transfer of ownership by the implementation of Muslim law of inheritance will not fall under the purview of Hiba. The ownership of any property is transferred voluntarily by a living Mulsim to another and hence, it is also referred as a transfer inter-vivos. The transfer of the possession of the property by the transferor must be in absolute interest and the transferee must be entitled to receive the full title in respect of the property granted to him. The elements of conditions, constraints or limited rights in gifted properties are contradictory to the principle of Hiba under Islamic law. The operation of Hiba starts immediately after the transfer of property by the transferor, disposing of all his possession and ownership of the property. Moreover, the transferred property must be tangible or have some existence at the time of the transaction. A property gifted without present existence is void.

FORMALITIES OF HIBA

The Muslim Law provides a discretion to grant a ‘Hiba‘ either orally or in writing, irrespective of the fact of tangibility or movability of the property. The only mandatory formality for the validity of a Muslim gift is taking the ownership or possession of the subject-matter of gift by the doner either actually or constructively.

Delivery of Possession

Formalities set down for gifts under Section 123, Transfer of Property Act, 1882, shall not extend to Muslim gifts. Under Islamic law, a gift is complete only after the donee has been granted the possession through the delivery of the possession by the donor. It is also compulsory for the declaration and approval to be followed by the delivery of the possession of the property. The gift shall take effect from the date on which the ownership of the property is granted to the donee, not from the date on which the declaration was made by the donor. The significance of overriding facet in Islamic law is such a degree that without giving the gift of possession to the donee, the gift is invalid even though it has been rendered by means of a registered deed.   The significance of overriding facet in Islamic law is such a degree that without giving the gift of possession to the donee, the gift is invalid even though it has been rendered by means of a registered deed. For a donation to be complete, the donor must dispose of not only possession but also the property in favour of the donor. In the Noorjahan v. Muftakhor, a donor made a gift of certain property to the donee, but the donor continued to manage the properties and takes the profit himself. Till the death of the donor, no mutation was made in the name of the donee. It was held by the court that since no delivery of possession was made, the gift was incomplete and ineffective in nature.

Modes of Delivery of Possession

The manner of delivering possession is entirely dependent on the nature of the property. To constitute the delivery of the property, the donor is legally obliged to act in a way by which the done is entitled to the physical possession of the property. A donee is said to possess a property in such a way that he may exercise exclusive control over it and benefit from it. The delivery of possession is broadly classified into actual and constructive delivery of possession.

• Actual Delivery of Possession

Actual delivery refers to the physical transfer of the property to the donee. The tangible properties or the properties that can be physically owned irrespective of movable or immovable, are supported under this form of delivery. The donee must be actually transferred and handed over the movable property. The actual delivery of possession is mandatory in case of immovable property. However, since the immovable property can’t be collected or handed over, the donor may deliver the property by providing all the documents relating to the property to the donee so that it can be used according to the discretion of the donee.

• Constructive Delivery of Possession

Constructive delivery of possession or ownership denotes to the symbolic transfer of the property. Through this mode of delivery, the donor does any act on the grounds of which it is legitimately assumed that the possession has been handed over to the donee. Such a form of transfer of ownership occurs only when the nature of the property forbids it’s the delivery through actual mode. The constructive delivery of possession is enough to constitute a valid gift when either the property is intangible, or the given circumstances doesn’t support the actual delivery of ownership property of the tangible property. 

ELIGIBILITY OR CAPACITY

The concept of capacity is broadly divided into two categories:

Mental capacity: A sound-minded person having the ability to assess the legal implications and repercussions of his action is eligible to grant ‘Hiba’. However, a ‘Hiba’ offered by a person of unsound mind during lucid intervals is considered valid.  In addition, the decision of donor or the transferor must not be influenced or altered through the elements coercion or fraudulent influence while making a gift. The courts ruled that the gift by the Parda-nasheen women was valid in the case of Hussaina Bai v. Zohara Bai. The court stated that it is important to determine that the gift is given by a Parda-nasheen lady involved her free consent and she made the gift on her own discretion. The burden of proving the absence of compulsion of the gift lies with the donee. 

Financial Capacity:  A person under insolvent circumstances can make a gift or ‘Hiba‘ in accord to the Hanafi School. If the gift or ‘Hiba‘ is rendered to defraud the donee, Kazi has the power to announce it void. The Indian courts accepted Hanafi ‘s view that the donor ‘s fraudulent intentions cannot be deduced from the fact of piled debt or the ambiguous financial conditions of the donor. With each gift, the donor must have a true intention of transferring property to the donee. If the primary intent to swindle the donor is evident from making a gift, the gift would be invalid.

The mere ability to make a gift is not enough as the question of the right to render a Hiba arises while transferring the property. A Muslim doesn’t have the right to give away the property in the absence of his ownership. For instance, if he’s just a tenant or guest, he’s not allowed to give the building to anyone because he’s not the owner of the property. Such a gift shall be considered as null. Nevertheless, a Muslim has the right to give away all his properties which he possesses at the time of the announcement of the gift. The transfer of the property by the donor must be in the absolute interest of the donee. It is also imperative that the donor owns the property that he wants to pass on to the donee.

CONCEPT OF REVOCATION 

Though the prophet ‘s notion is against the revocation of gifts or Hiba, all voluntary transactions including gifts can be revoked under the well-defined Muslim law.

Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is a well-established rule of Muslim law that all voluntary transactions, including gifts, are revocable. The topic of the revocability of gifts was addressed from different perspectives by the Muslim lawmakers. From one perspective, all gifts are revocable except those made in the grades by one spouse to another, or to a person related to the donor within the degrees of prohibited relationship.

A long list of irrevocable gifts is set forth in the text of Muslim law. There are not only variations between schools but also the Shia and Sunnis differ in the list of contents.  On the point of view of revocability, the Muslim lawmakers also classify gifts under the two main heads:

• Revocation of gifts prior to the delivery of possession 

•  Revocation after the delivery of possession

• Revocation of gifts before the delivery of possession:

According to Muslim law, all donations shall be revocable before the donee is granted the possession. The withdrawal is valid. The revocation will not alter the fact that the gift is rendered to a spouse, or to a person related to the donor within the degrees of prohibited relationship. The fact is that under the Muslim law no gift is complete until the delivery of the property has been made, therefore the transfer of gift to the donee is incomplete until the donor has delivered the property.

Thus, revocation of such gifts merely infers the mind change of the donor resulting in the reluctance of the delivery of ownership of the property to the donee. The court order is not essential for the revocation of these gifts.

• Revocation after the delivery of possession:

The simple assertion of revocation by the donor, or the institution of a lawsuit, or any other action, is not enough to revoke a gift. Until the order of the court to revoke the gift is taken, the donee shall have the complete right over the property in any manner including the right to devolve or dispose of the property. The Shia law of the revocation of gifts varies in the following ways from the Sunni law: firstly, a gift may be revoked without proceedings by a mere declaration by the Donor, secondly, a gift given to a spouse is revocable, thirdly a gift to a relation, whether within the prohibited degrees or not, is revocable.

Although it may indicate that all gifts after the transfer of possession can be revoked with the consent of the donee but the revocation can be enforced only by an order of the court.

The revocation of a gift is a personal privilege of the donor, and the gift can neither be revoked by his descendants after his death nor be withdrawn after the death of the donee, subjected to the following exceptions stated in the Hanafi School, according to which a gift can also be revoked even after the delivery of the possession:

• The link of donor and the donee within the forbidden degrees.
• Increase in the value of the subject matter.  
• The loss of identity of the subject-matter of the gift.
• Receipt of something in return (iwaz) by the donor.
• Gift received by one spouse to another.
• Death of the donor or donee.
• Absence of the gift or property in the hands of the donee, i.e. when it has been disposed of by sale or consumed in its entirety or has been lost.

CONCLUSION

The subject and the concept of the word gift is an age-old, conventional issue that has become a distinct feature of property law. The key goal of this analysis has been various aspects of the gift of property and its contrast and effects with the Mohammedan Law.

It should be noted when considering the law of gifts that the word ‘gift’ is common and should not be confused with Islamic technical term, ‘Hiba’. Hiba is the genus whereas gift is the species. The term gift denotes a transfer of the benefit and interest of a property from one person to another without consideration. In this article, the author has covered the aspects of the concept, capacity, formalities and revocation of gifts which included Hiba under its purview.

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This article is written by PRANIT BHAGAT pursuing BA-LLB from ILS Law College, Pune. In this article, he has discussed the major differences between civil and criminal negligence with examples.

Introduction

Negligence is considered both civil as well as criminal wrong. We need to know and understand that the concept of negligence is derived out of the basic word that we all have been subject to.

Understanding the Concept of Negligence in law

The word “negligence” stands for “carelessness”. Thus, we can define this as a situation where one person is injured or is harmed due to the carelessness of the other person. The other person does not harm directly but due to an act that he committed negligently is the tort of negligence committed. It is when one person owes another person, the duty of care, which means that any other ordinary person would have taken care if he would have been there in his place, therefore negligence is where due to the failure of one person to take care, another person suffers harm, damage, injury or loss. There are some situations in which there exists no contractual relationship between two parties and it is neither written nor implied. These situations are civil and where there exists a contractual relationship that is where the concept of criminal liability arises. For example in a case where the doctor is treating a patient in the surgical room, if the patient has signed the contract where it is mentioned that the doctor will not be liable in case of death, then there exists a contract but if the patient dies not because of the disease but because of the negligent act that the doctor committed then it is criminal negligence.

Essentials of Negligence

There are a few essentials of negligence that are needed to be fulfilled before one can claim that negligence has been committed. They are appended below:-

• Duty of Care

This means that there exists a duty of care in everything you do. The action of a person is tested upon whether any prudent man would have done the same in similar circumstances, therefore the duty of care means to take reasonable care of what you are doing.

• Breach of Duty of care

It is the breach of the duty of care which should be present in the negligent act, which means that if the act is done with the reasonable care and protection as any other prudent man would do, then there arises no question of the negligence being into question.

• There must be an injury or harm caused

Now, the third important element that needs to be taken into consideration is that there needs to be an injury, harm or loss to the person because of the breach of the duty of care on the part of the other person. Therefore, the negligent act will come to the cognizance of the court only when the injury is caused to the person.

• The injury or harm caused must be as a result of the breach of duty of care

This means that the previous act of the injury being caused is complete to be called as negligent act when it has done because of the breach of the duty to take care of the part of the other. So, it is when the other person fails to perform his or her duty towards the other, which any other prudent man would do in the ordinary course of the situation, and injury is caused to the person because of the failure to take care of the other, negligence is said to have been committed.

Defences to Negligence

Negligence can always be an appropriate trick to target anyone; therefore, there are defences available that prove that it is not always that the act has to be negligent. These defences are appended below:-

• Inherent Risk

So, when we talk about inherent risk, it means when the act itself is dangerous enough that it is dangerous and any prudent man would not engage in such an act, or any other prudent man would have done the same thing as the defendant has done, therefore in such cases, the defendant would not be liable of the negligence of which he is charged in the court.

For instance, when some dangerous animal approaches towards me, I run and while I Run, I take the knife from your cake shop and ruin your cakes, because of which you suffer losses and damage. So, I cannot be negligent because the animal that is running behind me is dangerous and if I do not take the knife from your cake shop, I would have died, therefore my act of picking the knife from your cake shop was not negligent and was an intentional act. The circumstance involved an inherent danger. Therefore, I cannot be charged with negligence.

• Obvious Risk

So, in this kind of defence, we talk about something very obvious. Where the act was done by the defendant was an obvious reaction to the primary action, the defendant cannot be blamed for negligence.

For Instance, were due to the spillage of oil, I slipped holding onto you and then you got hurt, I will not be held liable for the negligent act.

• Voluntary Assumption of Risk

I see a gun-shot approaching towards me and I jump pushing you ahead of me, in that case, I presumed that the gun-shot is coming towards me and the sudden reaction to the presumption was me jumping at you. In that case, I will not be held liable.

• Dangerous Recreational Activity

Dangerous recreational activity is when we participate in an activity for recreational purposes, but that activity is inherently dangerous and the participation in which would be a voluntary act, I will not be held liable for the negligent act.

So, where I participate in a sea diving activity and drown and die, the person who took me for sea diving will not be held liable for any negligent act or my death because it was me who went for that activity, therefore he cannot be held negligently liable for injuries caused to be or harm caused to me.

• Exclusion of Liabilities

In this what happens is that the defendant tries to modify their exposure to liability by stipulating a reduction or even exclusion from liability. Exclusion of liability means that the defendant tries to maintain a relationship with the plaintiff, to avoid the liability on them. Therefore, when the defendant tries to enter the premises of the plaintiff according to the will of the plaintiff that is the exclusion of liability. There lies an exception to this, i.e. when the term is used in the broader sense, reliance cannot be placed upon it because it loses its essence.

• Illegality

This defence means that there is illegality in the action done by both the plaintiff and the defendant, which means that there exists a common action based on illegal terms and therefore, if the plaintiff sues the defendant for causing harm negligently, then the defendant can claim that the act itself was illegal and therefore, the suit does not stand.

For instance, when both the plaintiff and the defendant together keep a tiger to tame in their house, and one day the defendant opens the cage and the tiger destroys the lawn, the plaintiff cannot sue the defendant for opening the cage of the tiger because keeping the tiger for taming purpose or any other purpose is illegal according to the law of the land.

• Inevitable Accidents

This means that accidents which are inevitable and over which the defendant has no control, he cannot be sued for the same.

For instance, If I am travelling through a toy train and buy a ticket from the ticket counter, and that train gets de-railed in between because of which I get hurt. So, I cannot sue the ticket distributors for not informing me about the derailing, even they were not aware of this inevitable accident. Therefore, they are not liable.

• Contributory Negligence

So, contributory negligence means where both parties are involved, no one party can be blamed for it. This means that when both the parties contribute to the action, and that action turns the table for one of them, the other one cannot be sued because it was both of them who contributed to the negligence of the act and therefore, it was contributory negligence.

Now that we know what negligence means, what its essentials are, and what its defences are, let us get into the practical aspect of the negligence and what people face in their daily lives. 

Cases of Criminal Negligence

1. When a person is driving a car and texting at the same time, and in the meanwhile breaks someone else’s car, he is criminally negligent because the criminal laws of the land, do not allow texting and driving. Similarly, in a case where a person is drinking and driving and kills someone on the road, he can be held criminally negligent. The reason for this is that killing is a crime and similarly drinks and driving is also a crime, therefore he can be sued and held criminally liable.
2. When a nurse in a nursing home forgets to feed the patient and the patient dies because of the negligent act of the nurse that is when the nurse could be held criminally liable because it is because of her criminal negligence that the patient is put forward for a risk to life.
3.  A caregiver in a hospital who is not paying attention and who provides someone with a deadly dose of medication could be considered criminally negligent.
4.  A person who is supposed to be a caretaker of the nursery and fails to take care, in lieu to which someone takes away the child of another, can be held criminally negligent.

Advocates liability for Negligence in criminal cases

Section 5 of the Legal Practitioner’s (Fees) Act, 1925 defines the Indian position on advocates’ liability for negligence. No legal practitioner who has acted or has agreed to act shall, by reason only of being a legal practitioner be exempted from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.

Civil Negligence

There are different types of Civil Negligence, just as the way criminal negligence is. A lot of common day examples prove that negligence even in the ordinary sense can take us to courts. Some of the examples of civil negligence are as follows:-

1. A store which is very popular for the beers, and usually has a lot of traffic inside the store, holds a sale in the mid-season without any security can be held negligent in his acts.

2. A pharmaceutical company if launches a drug without testing it on the humans can be held negligent.

3. A driver who runs a stop sign and goes beyond the prescribed speed limit can be held negligent.

4. A person who owns a dog and leaves him open in the courtyard of another and the dog destroys the garden of another. The person can be held negligent.

5. If a person who owns a dog, leaves a dog open in the playground and the dog attacks the cat of another and injures her, the person can be held negligent.

6. An office where mopping is in process and does not put a sign of wet floor can be held negligent.

7. A company that does not gets incorporated according to the SEBI guidelines, can be held negligent.

8. A doctor who operates on the wrong patient can be considered negligent.

Conclusion 

Therefore, in the above-mentioned circumstances, different levels of negligence can be traced. Some negligence may be civil while the other may be criminal. If we stop doing negligent acts, we will stop tolerating them too, and then only we will become careful about our actions about what we speak and what we do.

This article has been written by Mansi Tyagi, a student at Symbiosis Law School, Pune. Hindu Undivided Family is a religious yet legal entity. And thus, sons are expected to pay off the debts incurred by their father during his lifetime to ensure him an afterlife without any sins named under his name. The Doctrine of Pious Obligation and Antecedent Debts are concepts regarding the same, and explained in the article.

Doctrine of Pious Obligation

Joint families under Hindu Law are not limited to succession and a coparcenary system. The succeeding generation is also expected of some obligations, one of them being from the sons for the repayment of debts incurred by their father during his lifetime. Pious meaning religious, and under the doctrine of pious obligation, an expectation is casted on a son to repay his father’s loan and debts from the part of the ancestral property he holds under a religious duty towards his religion. However, this duty ceases to exist when the debts are avyavaharika, i.e. incurred for immoral or illegal purposes. As laid down by the Hon’ble Supreme Court in the case of ‘Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh’^[1], the doctrine finds its origin in the historical smiritis. It was held that non-payment of debts was a positive sin and thus to save the father from the consequences of such a sin in the afterlife, it was a son’s duty to pay off the debts. However, under law, the position has been modified to an extent where a son is liable to pay off the debts only confining to the interest in the coparcenary property he holds. He cannot be otherwise made personally liable. Also, unlike the previous distribution where the son was liable to pay off the whole debt and the grandson and great-grandson only the principal amount, now all three generations are equally obligated to pay off the principal amount and interests.

Now moving on to the other aspect of this doctrine, what are the Avyavaharika debts. In the case of ‘S.M. Jakati and Ors. vs. S.M. Borkar and Ors.’[2] the Hon’ble Supreme Court the term ‘avyavaharika debt’ was explained. The most plausible one it found was the one translated by Colebrook as “a debt for a cause repugnant to good morals”. Under the said doctrine, a son is off the liability to pay-off the debts if they are taken for such ‘avyavaharika’ purposes. These purposes may be for keeping a concubine, or gambling, or bribing or any other immoral activity.

The next question is regarding the legal position of the said doctrine. It was laid down in the case of ‘Muttayan Chettiar vs. Sangili Vira Pandia Chinnatambiar’^[3] to some extent. The court declared the doctrine as not a mere religious one, but a legal one too. It was argued that such legal duty arises as a corollary to the right of a son in the ancestral property. The father’s superior interest in the property over the son converts the pious duty into a legal one onto the son who succeeds to such property. Also, it is anyways known to all that when the debts are taken by the father, in his capacity of being a Karta and for the family matters, the sons inheriting become bound to pay off such debt^[4]. It can thus be concluded that such discharges of debts by the sons are only limited to the interest they bear in the ancestral property and they can never be held personally liable by a creditor for the repayment of debts. The limitation to the doctrine, however, is its requirement of only the male heirs to discharge the debts of a father. Wives or daughters, even having a right in the property shares in contemporary times, are not liable to pay off the debts of the father or husband under the doctrine. Thus in the case of ‘Keshav Nandan Sahay vs. Bank of Bihar’^[5], when the Bank filed a civil suit against the sons and wife of the deceased under doctrine of pious obligation to pay off his loan, the Patna High Court held only the sons liable for it. It stated that since female sharers were not a part of the doctrine, they could not be made to pay for repayment even though they inherited a share from the ancestral property. Thus we may say, this is one limit to the doctrine.

Doctrine of Antecedent Debts

A Karta cannot sell or mortgage the joint property unless there is a legal necessity, or for the benefit of the estate, or there are religious obligations. Antecedent Debts are one such exception coming under the head of legal necessity. Antecedent Debts refers to the legal obligation prior to the time in question about paying off one. Even though the antecedent indicates something in prior to the time, the Hon’ble Supreme Court through various judgments have bifurcated an “Antecedent debt” into one in fact and the one in time. Also, for the doctrine to be applied under law, the debts shall be incurred in connection with a trade initiated by the father. Even though the sons under the Doctrine of Pious Obligation are expected to pay off the debts from their interest of the joint family property, another way for paying off such debt is the father using the ancestral property directly. In the case of ‘S. Swaminathan and Ors. vs. R. Jayalakshmi and Ors.’^[6] , the Madras High Court limited this privilege only to the father, and the grandfather or the great-grandson qua the son or grandson only. However, such validity of alienation of joint family property lies on the pious duty laid on the sons to repay the debts of the father which are not taken for immoral purposes. In another case of ‘Prasad and others vs. V. Govindaswami Mudaliar and others’[7], the Hon’ble Supreme Court laid down specifically that in cases a father disposes off any debt from the joint family property, he is entitled to do so and the same is binding over the sons, provided two conditions:

“a. the debt was antecedent to the alienation and

b. It was not incurred for an immoral purpose.”

Let’s take an example of a situation where the doctrine will be applicable and where not. Suppose the father took a loan of Rs. 10,000, out of which he got the first three on the mortgage of the family property and the rest seven for later consideration. In such a case, only the earlier amount will be deducted from the family property if any, not the latter. It is important to note that the debt amount must be independent of any transaction impeached afterwards. Thus the doctrine empowers the father to alienate the joint family property for paying off debts which he took for moral purposes before such alienation in time or in fact.

Conclusion

The two doctrines indicate the religious and yet in some cases the legal obligation of the sons to pay off and settle the debts for moral purposes taken by their father during his lifetime. In regard to this, the sons are only liable to the extent that they share an interest in the joint family property, and thus are not personally liable for such repayments. However, the non-inclusion of women heirs, widows or daughters from this liability leads to a major gap in the gender-neutral system of families in Hindu law, and still needs to be rectified considering that they now share equal rights in the family property like those of male heirs.

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^[1] Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh, AIR 1953 SC 487.

^[2] S.M. Jakati and Ors. vs. S.M. Borkar and Ors., AIR 1959 SC 282.

^[3] Muttayan Chettiar vs. Sangili Vira Pandia Chinnatambiar, AIR 1906 Mad 1.

^[4] Venkatesh Dhonddev Deshpande vs. Son, Kusum dattatraya Kulkarini, AIR 1978 SC 1791.

^[5] Keshav Nandan Sahay vs. Bank of Bihar, AIR 1977 Pat 185.

^[6] S. Swaminathan and Ors. vs. R. Jayalakshmi and Ors., MANU/TN/9641/2019.

^[7] Prasad and others vs. V. Govindaswami Mudaliar and others, AIR 1982 SC 84.

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This article is authored by Pankhuri Pankaj, a 3rd-year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “irretrievable breakdown as a ground for dissolution” under the Hindu Marriage Act and is qualified in its entirety by reference to the Hindu Marriage Act, 1955.

INTRODUCTION

In India marriage is considered a sacrament and an integral part of the community which needs to be preserved at all costs. Marriage is considered the foundation of the family and an institution in the maintenance of which the public at large is entrusted. With the importance attached to the bond of marriage earlier in the Hindu community divorce was not even considered as an option, especially for the women, but with the enactment of the Hindu Marriage Act, 1955, a marriage can be dissolved by both the parties in marriage on any of the ground provided section 13 of the Act. 

LAWS IN RELATION TO DIVORCE IN INDIA

From considering marriage to be a holy bond made by the almighty himself to accepting the need to relieve a woman from the obligation to be chained with a man for the rest of her life despite the fact that man is completely devoid of the virtues that a husband should possess, the Hindu marriage laws have paved a slow but steady path to accept the provision of divorce. 

In India the divorce laws are categorised on the basis of two theories:

• First is the Fault Theory which basically relies on the matrimonial offence of either of the parties in the marriage to refer to a dissolution of the marriage. There are in total 9 such matrimonial offences laid down under Section 13 of the Hindu Marriage Act, 1955 to act as a ground for divorce.

• Second is the Mutual Consent Theory which lays down that in case both the parties in the marriage wish to detach from each other mutually without either of the parties being at fault then they should be granted the right. This theory is based on the concept that if two individuals are entitled to get married on their wish then they should be entitled to walk out of the union if they wish to. This theory has been enumerated under Section 13(i)(A) and 13(i)(B) of the Act.

WHAT IS IRRETRIEVABLE BREAKDOWN OF MARRIAGE?

Irretrievable breakdown of a marriage is a stage in a matrimonial relationship where the couple can no longer live together as man and wife. For the first time, this term was brought up in New Zealand where it was recognized that it needn’t be necessary for there to be some fault or other for a spouse to want to opt-out of a marriage and hence the law has to recognize and cater to that requirement.

The case of Masarati v. Masarati ([1969] 1 WLR 393, CA) the concept of irretrievable breakdown was considered for the first time in England and later in 1943 in the case of Blunt v. Blunt ([1943] AC 517, HL), the house of lords laid down more explicitly that no good can come out of legally upholding a marriage that has broken down to the point that there’s no scope for repair but separation. Under the English Law, it is considered that though marriage portraits a union of two individuals and is viewed as an example about companionship and love, rather than be put in a situation where a fault has to be brought out to prove to the court as to why the marriage wouldn’t work the option to opt-out of this bond and the choice to dissolve such a union should also be available with the same amount of dignity and ease. 

Even the Muslim law has taken the liberty to consider the breakdown theory and has graciously given both the parties to the marriage the right to give talaq, but till date in India, there is still no codified law to recognize irretrievable breakdowns as a ground for the dissolution of a marriage. In a country where the institution of marriage is considered a sacrament and is personified as a relation of eternal love and promise, the idea that the individuals involved in this holy arrangement would grow out of the relationship and would wish to dissolve the union is hard to digest fact. But with the change in the scenario in the country and considering the infact dead marriages involved in long drawn battles the Supreme Court expressed special concern regarding this concept.

IRRETRIEVABLE BREAKDOWN OF A MARRIAGE IN INDIA 

In the case of A. Jayachandra v. Aneel Kaur, the Supreme Court after pondering on the facts of the case considered the diffusion and disintegration of marital unity and deduced the irretrievable breakdown of marriage and granted divorce to the husband.

In the case of Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675), where after a few years of marriage the relationship between the individuals turned sour and various allegations of adultery and cruelty were raised. After carefully examining the facts of the case the trial court held that no cordiality was left between the parties after the allegations raised were of such nature and thus no possibility to reconnect the chain of marital life between them. From the facts itself, it was evident to the court that the marriage was wrecked beyond any scope for redemption and hence, the court held that there was no alternative left but to dissolve this marriage. Even though the High Court upheld the idea that the Trial Court made an error in granting divorce to the parties but the Supreme Court upheld the decision of the Trial Court and upheld the idea that it is best to sever the legal tie when the marriage becomes “fictional”.

Later in the case of Vishnu Dutt Sharma v Manju Sharma (Civil Appeal NO. 1330 OF 2009), the case of Naveen Kohli v. Neelu Kohli was brought up to appeal for a divorce on the grounds of irretrievable breakdown, the court held that the granting of the divorce on grounds of irretrievable breakdown would mean adding a clause to Section 13 of the Act through a judicial verdict. A mere direction of the court in earlier cases, without considering the legal position, was not a precedent to be followed by the courts. The court further added that only the legislature is empowered with the right to add a new clause making irretrievable breakdown of marriage grounds for a divorce. In the end, the plea was rejected by the Supreme Court and it was clarified that even though irretrievable breakdown was recognised under Naveen Kohli v. Neelu Kohli, the divorce was granted on the grounds of cruelty.

It is important to note that before considering the option of granting a divorce on irretrievable breakdown is to make sure the marriage was legally valid. 

Even though the Indian judiciary has recognised the irretrievable breakdown of marriage but to accept this concept as a ground for divorce it is necessary for the society to take a step aside from the belief of marriage as sanctity and face the reality of marriage indeed being a special bond but one that can grow out of those exceptional qualities of unity and love too. It is the Indian judiciary which hears cases on a daily basis but laws are not made everyday, for one to see irretrievable breakdown see the light on the other end of the tunnel as a valid ground for divorce, it is only the legislature which can fulfil that thought

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This article is written by Sharat Gopal, studying BA-LLB at Delhi Metropolitan Education, GGSIPU, Delhi. This article mentions about the importance of writs in Articles 32 and 226 of the constitution and between them.

Introduction

Before discussing the constitutional remedies also known as writs’, we must first familiarize ourselves with the fundamental rights guaranteed by the Constitution. Fundamental Rights as the term itself suggests are the ‘basic rights’ which are ensured to the citizens. These rights are deemed essential for the intellectual, moral and spiritual development of individuals and also to avoid tyrannical form and to grant special rights and protection of rights through various provisions. Merely mentioning provisions does no good, some type of constitutional remedies must be provided, this is when writs come into the picture. Whenever an individual’s basic rights are infringed by an administrative authority, constitutional writs come into the picture.

To protect the basic rights, the Indian Constitution, under Articles 32 and 226, provides the right to approach the Supreme Court or High Court, respectively, to any person whose Fundamental Right has been violated.

What is a writ?

Writs are the constitutional remedies available to the citizens of a nation when their fundamental rights are infringed. Writs are basically official orders issued by a court. Any warrant, orders, directions, and so on, issued by the supreme court and or the High court are called writs.

There are 5 types of writs, that are as follows-

• Habeas Corpus– ‘Habeas Corpus” is a Latin word which means “to have the body”.  If a person is detained unlawfully then any person from his behalf can file a writ of “Habeas Corpus”  in High Court using article 226 and using article 32 in Supreme Court.  The main purpose of this writ is to provide an immediate remedy to a person who has been detained without lawful justification. A lawful detention also becomes unlawful if the detained person is not presented before the magistrate within 24 hrs of his arrest.

By the adoption of the 42^nd amendment and with the judgement of Maneka Gandhi v. Union of India, the scope of Habeas Corpus was increased.

• Mandamus– the term “Mandamus” means, “to order”. It is a writ which is issued in a  superior court against a person or a public authority to do any act or forbid to do an act, which they are legally bounded to do so. The nature of duty must of public nature and not of private nature. The main purpose of this writ is to limit the powers of public authorities and make them work in their limited powers. There are various conditions for using this writ,-

1. There must be a legal right of the petitioner.
2. The legal duty must be imposed on an authority and the fulfilment of duty must be of importance in nature. The duty imposed must be statutory in nature which is either given by the constitution of India, or any law, but should not be of contractual in nature. If the authority abuses or exceeds the power given, then the writ of mandamus can be filed.
3. Writ of mandamus can only be issued in good faith and not for taking personal grudges.

• Prohibition– the term prohibition means to “prohibit”. This writ is issued by the High Court or Supreme Court to lower courts or other quasi-judicial authorities to stop further proceeding of a matter which exceeds their jurisdiction. This writ is used to keep lower courts within their prescribed limits. Earlier this writ was only used on judicial and quasi-judicial bodies. But now it is used even on administrative bodies. The scope of this writ has been increased from the past.

• Certiorari– the Writ of certiorari is similar to the writ of prohibition. Certiorari is available at a later stage and prohibition is available at an earlier stage. The writ of certiorari is issued by the Supreme Court or High Court to inferior court to quash the order already passed by a lower court. As it not only quash their order but also passes that matter to themself. Hence, it is not only preventive in nature but also curative in nature.

• Quo-Warranto– the term “Quo- Warranto” means “by what warrant?” This writ is issued to refrain a person who is acting in a public office which he is not allowed to. It is used to prevent a person from illegally using a public office.

These are the 5 writs that can be issued in both the Supreme Court and High Courts.

Article 32

DR B R Ambedkar called article 32 as the “heart and soul of the constitution”. The reason behind calling Article-32 as “the heart and soul of the constitution” was, he believed that just by providing fundamental rights without proper machinery for their enforcement they will be a useless action. Article 32 guarantees that, if any person’s fundamental rights are infringed then he/she could approach the Supreme Court for remedy. This article provides a quick and immediate remedy for enforcement of fundamental rights. Using this article, any person could directly approach the Supreme Court for seeking remedy, without requiring undergoing through the dilatory procedure from lower to higher courts as in ordinary circumstances.

Article 226

Article 226 is very similar to article 32, as article 226 also talks about writs. Any person can approach the High Court using article 226, if their fundamental rights or any other right is being infringed. No doubt that the jurisdiction of the high court is very wide, as it can issue writ not only for the infringement of fundamental rights as by supreme court but also for enforcement of any other right as well.  The only thing court needs to establish that the party had such right and which has been threatened or illegally invaded.

Difference between Article 32 and Article 226

Article-32	Article-226
Article-32 can only be used for enforcement of Fundamental Rights	Article-226 can be used for enforcement of Fundamental Rights and other purposes as well
Scope of Article-32 is lesser than Article-226	Scope of Article-226 is wider than Article-32
Article-32 is used for approaching Supreme Court	Article-226 is used for approaching High Court
The order passed by SC supersedes the order passed by the HC	The order passed by HC under article-226 has lesser power than order passed by the SC under Article-32
Article-32 is a Fundamental Right	Article-226 is not a Fundamental Right

 Case Laws

In the case of Aditanar Educational Institution v. Assistant Director of Income-tax (297 I.T.R. 376), Madaras High Court held that relief under Article-226 of the constitution can be granted when there is no other remedy available under the statute and have undisputed facts. And when the High Court found that the disputes mentioned are disputed, it won’t be desirable to deal with those matters using writ petition.

In the case of Daryao v. State of U.P., it was held that to approach Supreme Court with Writ should not be merely considered as a right, instead, it should be considered as the Supreme Courts duty to protect the fundamental rights of people.

Conclusion

Article-32 of the constitution has very well been said as the heart and soul of the constitution. Till now it has been proved that these Writs mentioned in Article-32 and Article-226 to be filed before Supreme Court and High Court, respectively are the most effective remedy provided in constitution to protect the rights of the individuals.

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This post is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, she tries to briefly explain the Air (Prevention and Control of Pollution) Act, 1981.

Introduction

The Government passed the Air Prevention and Control of Pollution Act (1981) of India Act in 1981, extremely comprehensive legislation comprising more than fifty sections. It came into existence with the sole purpose of aiming to reduce the level of Pollution in our air quality. It paves way to set up State and Central boards that will help to carry out necessary steps in order to improve the air quality. Along with this it also constitutes provisions, to declare pollution control areas, to impose restrictions on certain industrial units, to limit emission of the air pollutants present, for inspection and taking samples, analysing the same, imposition of penalties, cognizance of offences etc.

Important Provisions

Now that we have understood that the primary aim of providing provisions in this Act is to abate and control the amount of air pollution in the country, and Boards at both State and Central levels are established to achieve this, we look at the most relevant provisions that every citizen should be aware of-

The Act is a compilation of 54 sections, and a total VII chapters. The chapters II and III give out the roles and responsibilities of the pollution control boards, Chapter IV is responsible for regulation of the pollution standards and how they can be monitored whereas Chapter VI lays out the penalties that could be imposed in cases of noncompliance of the Act.

Section 3 of the Act states that both the Central and State Pollution Control Boards shall have a collective responsibility to exercise the powers provided by virtue of this Act.

Section 4 states that, in states where there is a Water Pollution Control Board already established it will be ruled that this same Board shall also have the joint responsibility of controlling and monitoring the air pollution levels, and will be called the State Pollution Control Board. And for states where there is no Water Pollution Control Board, a new Board shall be established ( Section-5).

Section 16 and 17 state the duties and functions of the State as well as Central Board as incorporated under this Act. Whereas Section 19 states that the State Pollution Control Boards shall have the authority to declare any area as an air pollution control area, although with a condition that the same shall be with prior consultation from the Central Pollution Control Board.

Section 21 of the Act states that no person shall be allowed to establish an industry without the prior permission from the Boards ( State/ Central) in an area declared as-  an air pollution control area.

Section 22 of the Act states no person or industry shall be allowed to emit air pollutants above the standards that are already set by the Pollution Control Boards. Non Compliance of this section can also give powers to the Board to approach court so as to gain a restraining order on the concerned industry (in case standards are not met with).

Section 26 and 28, both are responsible for effective lab testing. The former section gives power to any officer of the Pollution Control Boards to take samples from any chimney, duct, etc of a particular industry, so as to check whether the emissions are within the limits if prescribed standards. The latter section allows the State Pollution Control Boards to set up various State Air Laboratories ( these can be new establishments or existing labs). These labs shall only be authorised to test the air samples collected by designated officers and check the air quality. These labs will work for the State Pollution Control Boards.

The environmental legislation in India is a combination of the Air Act 1986 and the Water (Prevention and Control of Pollution) Act, 1974. The two Acts have many overlapping features. Both these acts remain important, but the Environment Protection Act, 1986, became the major environment governing act after it came into force.

The Air (Prevention and Control of Pollution) Act of 1981 and amendment, 1987

To implement the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972, Parliament enacted the nationwide Air Act.

The main objectives of the Act are as follows

This Act aims primarily to preserve the natural resources of the Earth which among various other amazing things includes the protection and preservation of high quality of air and ensure that mankind doesn’t disturb the natural cycle by controlling the level of air pollution. The Act urges through its provisions the following most important points-

(a) To provide for the establishment of central and State Boards with a view to implement the Act.

 (b) To provide for the prevention, control and abatement of air pollution.

(c) To confer on the Boards the powers to implement the provisions of the Act and assign to the Boards functions relating to pollution.

(d) To control the release of particulate matter, lead, carbon monoxide, sulphur dioxide, nitrogen oxide, volatile organic compounds more than the prescribed level by industry, vehicles, power plants, etc. so as to clean up our air by controlling pollution.

Powers and Functions of the Boards

Section 16 and 17 lay out the functions of the Central Pollution Control Board, some of which include-

1. Advising the respective State as well as the Central government on matters related to air and air pollution.
2. Advice and support both the State as well as Central Boards in carrying out the functions mandatory in the Act.
3. Carrying out research pertaining to the issues of air pollution.
4. Spreading awareness and information about air and air pollution by way of mass media and other communication modes.
5. Plan and organize the mandatory training of personnel required under this Act. (For this, States shall collaborate with Central Board)
6. Also, most importantly set out the standards for measuring optimum and ideal Air Quality in India as prescribed by the Act.
7. Carrying out proper inspections in the air pollution control areas at accurate necessary intervals.

Penalties

The Section 37 of the same Act law states that any kind of failure to comply with the rules prescribed in Section 21 and 22 will ultimately result in punishment for a minimum of one year and 6 months, subject to extension up to 6 years with fine. If the same offence is repeated and rules are not followed further, an additional fine of 25,000 rupees per day will be imposed till the time the offence is not continued. In case emissions are produced of air pollutants in excess than the standards laid down by the State Board then the persons responsible for the management of industry shall be penalized. 

Further any person attempting or contravening any of the provisions of the Act/ order/ directions that are issued shall be punishable with imprisonment for a total term of three months or with a fine of Rs. 10,000 or both.

References-

http://nbaindia.org/uploaded/Biodiversityindia/Legal/23.%20Air%20(Prevention%20and%20control%20of%20Pollution)%20Act%201981.pdf

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This article has been written by Aaditya Kapoor, a law student of Vivekananda Institute of Professional Studies. Through his research, Aaditya has conjured a briefly detailed analysis on the process of partition and reunion of family.

Introduction

The construct of law is one that is ever-evolving, and that has been the case since the beginning of time. The necessity of an abstract governing entity has always been felt by man; with his understanding of that necessity changing and adapting to public interest with the passing of time. One of the focal points of evolution for the law came through customs and traditions that a group of people applied and chose to follow for a long time, turning mere practices into land-governing regulations. In the present scenario, most of the world has fabricated a codified rendition of law, but the customs and traditions of the past still hold importance in a number of ways.

India is a country that flaunts its rich heritage, the very crux of which was built upon the culture of its people and their free will in professing their own beliefs. In order to enforce a proper felicitation of customs and traditions, the Hindu Family Law has been established to lawfully administer family rites between Hindus. Ever since, this codified structure has been the enforcer for all Hindu Family Laws, including laws related to Re-Opening of Partition.

What is Partition?

In order to obtain insight into the process of re-opening of partition, it is vital to understand what the process of partition in itself entirely entails. A partition is a calculated division of family property amongst its members, thereby concluding the joint status of such family. Once the partition is successful, the particular family ceases to exist as a joint family and becomes a nuclear family. Through this process, various coparceners of property can attain their fixed shares as a coparcener.

The Mitakshara school of thought compares partition to be a severance of status or interest, amidst family. Mere division of property between coparceners does not amount to partition, but the complete severance of status of being a member of the joint family constitutes partition in its true sense. Furthermore, the process of partition can be administered in two methods:

1. Total Partition: Through this process, the family property in its entirety is divided in between all coparceners.
2. Partial Partition: The family may encounter a particular occurrence wherein only a few members of the joint family go out on partition while the others remain members of the family. In this case, the remaining members maintain joint status while those that leave get their share.

In order to satisfy prerequisites for either of the aforementioned processes, there is also a requirement of the fulfillment of two necessary conditions that give rise to partition. They are:

1. Intention to separate from the rest of the family within the minds of members or member.
2. External declaration of such intention to separate from the rest of the family. This declaration entails expressing the intention of partition vividly through verbal or written communication.

Re-Opening of Partition

Although, according to Hindu Law and as per the teachings of Manu, a partition once made stands to be irreversible and irrevocable. However, to cater to the public interest, certain exceptional situations have been allowed by law as cases under which an application to re-opening of partition can be applied.

1. Fraudulent Partition: There are grounds to re-open partition in case a coparcener has unfairly obtained an advantage in the distribution of property through exercising fraudulent behaviour upon other coparceners. Such behaviour may include misrepresenting worthless assets as those with value, or concealment of property by the person exercising said fraudulent behaviour. The affected coparcener in furtherance has a right to claim the reopening of partition thereby.

• Person in the womb: Considering how the right to partition is retained by sons, grandsons and great-grandsons, in case a son has been conceived at the time of partition and born after, he too can claim his right to property as a coparcener. In case the family members attain knowledge of such pregnancy, the partition has to be delayed until his birth, or, his share to the property needs to be reserved. In hindsight, however, where no such reservation is made to the son in the womb, he can demand for re-opening of partition after birth through any external representation.

• Existence of Adopted Son or Sons: Section 12 of Hindu Adoption and Maintenance Act, 1956 prescribes the right of adopted sons to be coparcener to property at the time of partition. Birth of biological son after adoption does not take away the right of an adopted son and therefore, in case he does not get his share of the property after partition, he can claim re-opening of partition through any representation.

• Coparcener disqualified: In some cases, a coparcener is held un-entitled to his share at the time of participation due to certain disqualification of technical restraint, in which case, he can re-open partition once said disqualification ceases to exist upon him.

• Absence of valid Coparcener: In case a coparcener holding right to share in the property is absent at the time of partition, and no share is allotted in his name, he too has a right to ensure re-opening of partition.

• Coparcener in Minority: If, at the time of partition, a coparcener being a minor does not have his interests accounted for, he has the option of re-opening partition. There is no requirement for there to have been fraud, misrepresentation or undue influence for a minor coparcener to re-open partition, in case the partition itself is proven to be unfair to the minor’s interests and opposing his personal benefit.

• Addition of Property after Partition: In case some property is mistakenly or deliberately left out, lost or seized at the time of partition, the partition can be re-opened in case such properties re-surface. However, it is not necessary to re-open partition for their distribution; in the sense that, if they can be viably distributed within coparceners without re-opening of partition, there is no necessity in disturbing the prior process.

Reunion

In furtherance of re-opening of partition comes the reunion of a family; a state in which the particular family members resume their status as a joint-family which had been lost after partition. A reunion is the only way in which the joint-status of family can be re-established amongst family members. However, only those members of the family that originally had joint status in the property are eligible to reunite with each other.

The primary prerequisite for administering reunion is the intention of parties to reunite in the estate as well as a common interest. That also entails that simply choosing to live under one roof without the intention of regaining joint status in property shall not constitute a valid reunion. It is also necessary that the communication is communicated vividly, with each separate coparcener giving individual consent to the reunion.

Once a family reunites, the foremost effect of such reunion is the resolution of reunited members to their prior status as members of a joint family under Hindu Law. In consequence, the property divided to each individual coparcener is also pulled back as a collective property of the joint family wherein the members also regain their status of undivided coparceners. A complete restoration of the family and its members along with their status is triggered by the reunion, so as to make sure that there is no legal difference within the family from before prior partition.

In hindsight, a reunion of parties is an occurrence of rarity and therefore, upon a pleading of reunion before a court, there is a grave need of proving that the family underwent partition in the first place, with evidence of the same necessarily being clear and consistent.  

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