BLOG 1

INTRODUCTION

As per the Indian laws, inheritance and succession of the property of a

deceased are governed by the Indian Succession Act, 1925 and the
property is divided as per the Act when the person dying, whether Hindu
or Muslim, dies without leaving behind a will, i.e. dies intestate. When
the person leaves a Will regarding his property, the property will be
distributed as per his/her wishes.

DEFINITION OF A WILL

A Will is a statement by a person regarding who he/she wishes to allocate

their property after their death. Section 2(h) of the Indian Succession
Act, 1925 states that Will means a legal declaration of the intentions of a
testator regarding who will carry his/her property after his/her death. The
person who makes a will is known as the ‘testator’.

A Will can be made for any kind of movable or immovable property

owned by the testator. However, the only condition on the kind of
property that can be included in a Will is that it can be made only for the
self-acquired property of the testator and not any ancestral property.
When a person’s ancestral property is to be divided, Hindu Succession
Act comes into the picture and the property is divided accordingly.

COMPETENCE TO MAKE A WILL

Section 59 of the Indian Succession Act defines who can make a will in
India. It states that a person who is of sound mind and is not a minor i.e.
he/she has attained the age of 18 years, can dispose of his/her property by
making a will. This means a person who is in a state of intoxication,
illness or any other cause which affects the capability to make decision
cannot make a will while being in that state.

Section 59 also states that a person who is ordinarily insane can make a
will during the time when he is of sound mind. Also, a person who is
deaf, dumb or blind may also make a will if they have the knowledge of
what they are doing.
FORMATION OF A WILL

A Will must be drafted with the help of a documentation expert or under

legal supervision, who has experience in dealing with family matters. The
will should be written in the most simple and precise manner. It should
mention the details of the testator, details of the self-acquired property of
the testator and how that property is to be divided and the person
appointed as the executor of the will after the death of testator.

The testator can make any changes to the Will, if such changes are valid
under the law. After all the changes are made, the last Will of testator will
be considered as the final Will. The Will can only be executed after the
death of the testator, however, it can be revoked at any time during the
lifetime of testator.

Section 61 of the Indian Succession Act states that any Will obtained by
fraud, coercion or importunity (in simple language- emotional blackmail)
would be considered as void and cannot be executed.

WILL REGISTRATION PROCEDURE IN INDIA

Under the Indian Succession Act, 1925, registration of a will is not

necessary. It is considered as the personal choice of the testator to get the
will registration done or not. However, it is a better option to get the
will registered as it helps in establishing the testator’s wishes in case of
any future disputes.

The process of will registration in India is as follows:

1. Upon drafting and reviewing of a Will, the testator needs to sign it

in presence of at least 2 witnesses.
2. The witnesses also attest the document, certifying that the Will is
signed in their presence.
3. The properly prepared Will is submitted with the Registrar or Sub-
Registrar that has the jurisdiction over the area where the testator
lives, along with the registration fees.
4. The Registrar evaluates the Will and enters it in the book of
Registrar.
 5. After entering the Will in the book, the Registrar gives order for
registration of Will.
6. If the Registrar rejects the will, a civil suit can be filed within 30
days of receiving the rejection notification.

REVOCATION OF A WILL

Section 62 of the Indian Succession Act states that a Will can be revoked
by the testator at any time. If the testator is competent enough to make a
will, i.e. of sound mind and major, then he/she can also revoke a will as
per his/her wish.
 BLOG 2
INTRODUCTION

Ancestral Property is a property passed on through four generations of a

family without getting partitioned or divided. Hence, a property can be
considered as an ancestral property if it has been acquired by your
great grandfather, then passed onto your grandfather, then your
father and lastly to you without being partitioned or divided at any
stage. The laws regarding the succession and partition of ancestral
property in India are determined by the various personal laws of the land.

For Hindus in India, the Hindu Succession Act, 1956 determines the
succession and partition laws. Under the Hindu laws, the rights to
ancestral property are received by the coparceners at birth. Also, for
succession, the share of each generation is first determined which gets
subdivided for successive generations. The Muslim Personal Law
(Shariat) Application Act, 1937 determines partition and succession for
Muslims in India. The laws determine questions of intestate succession,
transfer of property as a gift, special property of Muslim women, etc.

PARTITION OF A FAMILY PROPERTY

When two or more persons have rights over an immovable property by

means of joint ownership and one or more of them want to gain
ownership of their share of the property separately, then they can do the
partition of the property. Joint family property can then be divided by
mutual consent of the parties or divided on the basis of the demand of one
or more of such joint-owners. Joint family property in India may be
divided by filing a partition suit or by executing a family partition deed or
a family settlement deed.

 Partition of Ancestral Property through Partition Suit

A partition suit in India may be filed before a Court for the partition of
ancestral property. When all the legal heirs of the ancestral property
could not agree on the same terms and conditions to divide the property,
then a partition suit is filed. The suit must be filed in the Court which has
jurisdiction over the area in which the property is situated.

A legal notice to this effect must be sent to all other legal heirs and co-
owners containing details regarding the property that is to be partitioned,
shares of each of the owners and the course of action that is to be taken. If
no response is received to such notice, a partition suit must be filed.

Once the suit has been filed, the Court takes steps to determine whether
the person filing has the right to claim such property and if it is
established in affirmative, then the Court may not conduct any further
inquiries and assign individual ownership of the property to the co-heirs
or co-owners of the property. A Legal Heir Certificate would be deemed
to be appropriate proof of your rightful claim in the ancestral property.

If it could not be established and the property could not be divided, the
Court may order for further inquiry regarding the rights of the parties.
The Court shall, hence, appoint a Commissioner by passing a preliminary
decision who shall be evaluating the property and submitting a report
regarding the rights of the parties. On the basis of this report, the Court
determines the shares of each of the co-owners of the property and divide
the property accordingly.

 Partition of Ancestral Property through Partition Deed

A partition deed is executed to divide a jointly-owned property separately

among the co-owners. The property is distributed amongst each of the co-
owners according to their share in the property. Once a partition deed is
executed, each of the co-owners becomes an absolute owner of the share
allocated to him/her. The partition deed must be drafted under a good
legal supervision so that all future litigations could be avoided.

Once the partition deed is executed and the property is divided, each of
the co-owners becomes the new owner of the property. The new owners
now get absolute ownership of the property of the land allowing them to
sell, exchange, transfer or gift their share of the property at will.
For a partition deed to be good in law, it must be executed on a stamp
paper by paying the requisite stamp duty. It should further be registered at
the office of the Sub-Registrar having appropriate jurisdiction.

 Partition of Ancestral Property through Family Settlement

Agreement

A family settlement agreement may be executed by the co-owners of a

joint family property when they intend to divide the property amongst
them mutually in peace without getting into any court dispute. Obtaining
Legal Heir Certificates for each of the heirs would, however, be advised
to ensure that the property partition is undertaken smoothly.

A family settlement agreement must be drafted in simple and clear terms,

details of the property and the share to be acquired by each of the parties,
clearly specifying the date from which such partition is to be effectuated.
However, a family settlement agreement need not be stamped or
registered at the office of the Sub-Registrar.

The Settlement Agreement has to be further agreed upon and signed by

all co-owners without there being any family pressure, fraud or coercion
from the other co-owners. It is also not essential for the family settlement
agreement to be a written document, it may also be a mutual
understanding or compromise between the parties. However, having a
written agreement will ensure that future legal complications are avoided.

PARTITION OF PROPERTY UNDER MUSLIM LAW

The Muslim law makes provision for the partition of property in the
following manner:

 Sharers of Property

Sharers of property are entitled to a prescribed share of the

inheritance. In case of the property of a husband, his wife(s) is the
sharer in his property and is allowed to inherit one-sixth of the total
property.

 Residuaries
 Residuaries are not entitled to a predetermined share but are entitled to
the part of the property after the sharers have divided and inherited
their share. The children of a Muslim man may be considered as the
residuary in their father’s property. The remaining five-sixth of the
property is distributed between the residuary which also includes the
daughters irrespective of their marital status. However, the property is
divided between the sons and the daughters at the ratio of 2:1.

 Distant Kindreds

Distant Kindreds are those people who are related by blood but do not
fall into the category of sharers or residuary. They do not have any
rights over the property but may receive the same after it has been
proved before a Court of law.

RIGHTS OF WOMEN IN FAMILY PROPERTY PARTITION

Hindu women have recently acquired rights in ancestral property equal to

that possessed by men. The 2005 amendment to the Hindu Succession
Act, 1956 granted equal rights to both married and unmarried daughters
over ancestral property. The amendment granted daughters the same
rights, duties, liabilities and disabilities that were earlier limited to sons.
However, this privilege was limited to such women whose fathers died
after September 9, 2005. The Supreme Court made further amendments
in favour of women’s rights. The Supreme Court extended the
applicability of the amendment to all women irrespective of whether they
were born before or after 1956 and they are also entitled to the benefits
under the 2005 Amendment.
 BLOG -3
DIVORCE LAWS FOR NON-RESIDENT INDIANS

Divorce laws in India are complicated on their own, add marriages

among Non-Resident Indians and Indian residents into the mix, it can
become a difficult and more complex task to manage without proper
information. The laws relating to NRI divorce in India are slightly
different from the divorce of two Indian Citizens. However, both mutual
consent divorce and contested divorce are acceptable forms of divorce in
case of NRIs.

MUTUAL CONSENT DIVORCE AMONG NRIs

When both the spouses have been residing in a foreign country and wish
to end their marriage, such a divorce by mutual consent obtained under
the laws of such foreign country are recognized by the Indian courts.

If an NRI married an Indian resident and the marriage was solemnized in

India, and the couple wishes to end their marriage by a divorce by mutual
consent, a petition for a mutual consent divorce can be filed either in
India or in the country where both of them are living at the time of
divorce.

The primary condition in such NRI divorces become that the free consent
of both the husband and wife must be present to obtain a decree of
divorce from a foreign court to be recognized as valid under the Indian
laws. The petition for a mutual consent NRI divorce is made in
accordance with the laws of the foreign country in which it is obtained
and not the laws of India.

Such kind of NRI mutual divorce will be valid if the court which passed a
decree for divorce had appropriate jurisdiction and the decree complied
with all the terms and conditions of a mutual consent divorce. Other
matters relating to alimony/maintenance, child custody and division of
assets will also be dealt with amicably by the spouses as per the laws of
the foreign country they reside in.
VALIDITY OF THE MUTUAL CONSENT DIVORCE AMONG
NRIs
A decree of mutual consent NRI divorce will not be considered to be
valid if
 the decree was not awarded by a court of competent jurisdiction.
 the consent of either of the parties was obtained by force, coercion
or undue influence.
 the divorce decree was not awarded on the merits of the case.

Such a decree may be challenged in an Indian court to declare it null and

void. A divorce lawyer in India must be consulted to understand the
validity and applicability of a foreign divorce decree in terms of the
Indian laws.

CONTESTED DIVORCE AMONG NRIs

A contested divorce may be filed by any of the spouses on the valid

grounds of divorce laid down under the divorce laws of the foreign
country they are residing in. When both the parties fairly contest the
divorce and a foreign court awards a divorce decree, it will be valid in the
eyes of the Indian court.
However, when a divorce decree is filed in a foreign court, and the
divorce is awarded ex parte i.e. in absence of the other party, the divorce
decree will be valid in that foreign country only and not in India. Such
decree will be considered as void and the spouse will have to contest the
divorce before an Indian court.
Matters get more complicated when one spouse is residing in India and
the NRI spouse is residing in a foreign country. Either of them wishing to
get a divorce from the other can become a tedious process. It is best
suited to file a divorce suit in India if the marriage is solemnized in India.
know about the eligibility and applicability of foreign divorce decrees.
When a divorce is filed in India by an NRI, a divorce attorney can get an
exemption for the spouse from personally appearing before the court in
India through a Power of Attorney. The spouse is then required to appear
personally before the Indian courts only in the case of recording of
statements, examination and cross-examination.
 BLOG – 4

INTRODUCTION-MAINTENANCE

Maintenance is defined as the basic financial support to wife by the

husband when she is unable to maintain and provide food, clothing, and
shelter to herself and her children. Under the Indian laws, a husband is
liable to pay maintenance to his wife not only after the divorce but also
before the divorce and during the divorce proceedings.
Maintenance to wife is a complicated aspect of divorce in India. Often,
divorcing couples are confused about the concept of maintenance and
find themselves in great problems when a maintenance petition comes
into the picture. Usually, a wife is entitled to claim maintenance from her
husband before, during and after the divorce, but there are certain cases
when the wife is disqualified from claiming maintenance.

The court considers various factors when determining the husband’s

liability and amount of maintenance to be paid to the wife such as
 the husband’s income
 the wife’s income
 husband’s dependants, and
 the laws applicable over them.

WHEN WIFE IS NOT ENTITLED TO CLAIM MAINTENANCE

Under the Hindu Laws, the husband is not liable to pay maintenance to
his wife in the following cases:

 The wife has converted to another religion and has ceased to be a

Hindu. If the wife converts to another religion during the marriage
or after divorce, the husband is not liable to pay maintenance to his
wife.
 The wife has committed adultery. If the wife is unchaste and has
indulged in physical relations with another man, she ceases to have
maintenance rights.
  The wife has remarried after the divorce. If the wife has remarried
to someone after the divorce, the husband is not liable to pay
maintenance as the wife can be maintained by her new spouse.
 The husband can also contest a maintenance petition through a
good divorce lawyer in India if the wife is employed and earning
sufficiently. However, the courts would still consider her capability
to maintain her children if she is unable to do so with her salary.
Also, a wife who is earning does not become disqualified on the
grounds of her employment. If the salary of the wife is not
sufficient to maintain the lifestyle she enjoyed before her divorce,
the courts will hold the husband liable to pay maintenance to her.

MAINTENANCE UNDER THE DOMESTIC VIOLENCE ACT

Recently, the Bombay high court held that a wife cannot be entitled to get
maintenance from her estranged husband under the Domestic Violence
Act unless she has actually been subjected to any of the acts or conduct
defined as ‘domestic violence’ under the Act. Under the Domestic
Violence Act, a wife can only claim maintenance if it is proved that the
husband had subjected her to any act of domestic violence. If there is no
evidence of her claim of domestic violence, the court may reject her
petition to claiming maintenance. The husband can challenge the
maintenance petition under this Act by hiring an experienced divorce
advocate in India.

MAINTENANCE UNDER MUSLIM LAW

A Muslim woman becomes disqualified from claiming maintenance from

her husband in the following instances:

 The wife has not attained puberty.

 The wife has abandoned her husband and marital duties with
sufficient reason. If the wife leaves her husband without sufficient
reasons, she is not entitled to claim maintenance.
 The wife has eloped with some other man. If she leaves her
husband for another man, the wife is no longer entitled to her right
to claim maintenance.
  The wife disobeys the reasonable commands of her husband.

A husband can contest the maintenance petition filed against him by the
wife on the grounds that she is no longer entitled to claim maintenance as
per the applicable laws in India.
 BLOG - 5
RESTITUTION OF CONJUGAL RIGHTS – SECTION 9, HINDU
MARRIAGE ACT

Marriage is considered to be sacrosanct and breaking up of a marriage is

contemplated as breaking up a sacred bond. There are times when one
spouse decides to leave the company of the other and chooses to stay
separately without any reason or justification. In such case, the other
spouse has been given a legal right to file an application for restitution of
conjugal rights.

MEANING OF CONJUGAL RIGHTS

Conjugal rights primarily mean the right to stay together. Restitution

means restoring something that has been taken from a person unlawfully.
Restitution of conjugal rights, thus, means the restoration of cohabitation
and conjugal relations between the husband and wife by way of legal
interference. The remedy of restitution of conjugal rights is given, then
the spouse living separately has to compulsorily come and reside with the
other spouse.

When either the husband or wife withdraws from the society of the other
without any reasonable excuse, the aggrieved spouse has the option to
approach the court for restoration of conjugal rights. A petition for
restitution of conjugal rights is filed under Section 9 of the Hindu
Marriage Act, 1955. An RCR petition under Section 9 is considered as
the last thread to save the marriage before its final breakdown.

CONDITIONS FOR FILING A COMPLAINT UNDER SECTION 9

OF HMA

To file a petition for restitution of conjugal rights, it is necessary that the

following conditions are met:

 The spouses must not be living together.

 The withdrawal from the society of spouse must be made for no
reasonable reason.
  The affected spouse must have filed for restitution of conjugal
rights.

GROUNDS FOR REJECTION OF THE PETITION FOR

RESTITUTION OF CONJUGAL RIGHTS

A petition for restitution of conjugal rights can be rejected by the court in

any of the following cases:

 When the respondent can claim any matrimonial relief.

 When the spouse filing the petition has committed any matrimonial
misconduct.
 When the actions of the spouse filing the complaint make it
impossible for the respondent to stay with them.

FILING OF A PETITION FOR RESTITUTION OF CONJUGAL

RIGHTS UNDER SECTION 9, HMA

A petition for restitution of conjugal rights can be filed with a civil court
that has jurisdiction over the area where-

 The marriage was performed.

 The husband and wife used to stay together.
 The wife currently stays.

The spouse who has been left by the other spouse can file a petition for
restitution of conjugal rights in the appropriate civil court. An application
is filed with the court having appropriate jurisdiction. The burden to
prove that the spouse has left without any reasonable excuse lies on the
aggrieved spouse.

The court evaluates the petition and if it is satisfied that there is a valid
case, the court calls the other spouse to appear before it to present his/her
side. After hearing both the sides and examining the facts and evidence,
the court may order for restitution of conjugal rights by the way of
attachment of the spouse’s property. If the spouse fails to honor the
decree of restitution of conjugal rights, for a period of more than one
year, the aggrieved spouse gets a valid ground to file a divorce against
him/her.

Another important aspect under Section 9 petition is that an aggrieved

wife who does not want judicial separation from her husband can also
claim maintenance under Section 25 of the Hindu Marriage Act,
1955 without the need to file a separate maintenance petition. The claim
for maintenance can be made during the pendency of the RCR petition if
the wife is unable to sustain herself or her children financially.
 BLOG 6
MUTUAL CONSENT AND CONTESTED DIVORCE

Ending a marriage is one of the most difficult and testing decision in a

person's life that needs to handled in the most delicate and systematic
way. Divorce in India can become unmanageable if you don’t have the
complete knowledge about the types and divorce procedure. Divorce laws
in India categorize divorce as mutual consent
divorce and contested divorce. The facts and circumstances of a
divorcing couple determine which divorce type would be applicable to
them.

People often get confused between mutual divorce and contested divorce
and hence the detailed difference-

 Meaning of Mutual Consent Divorce

A divorce by mutual consent is a kind of divorce whereby both the

husband and wife mutually agree to end their marriage and decide the
terms and conditions of their divorce amicably. Mutual consent divorce is
also called an uncontested divorce as the husband and wife file a joint
divorce petition without the need to contest it in the court.

 Meaning of Contested Divorce

A contested divorce is whereby one spouse files a divorce petition against

the other and the other spouse contests it in court. A contested divorce is
also known as one-sided divorce as a divorce petition is filed by one
spouse to end the marriage and is contested by the other before the court.

DIFFERENCE BETWEEN MUTUAL CONSENT DIVORCE AND

CONTESTED DIVORCE

 Ground For Divorce

Under the Indian divorce law, establishing a ground for divorce is not
necessary for a mutual consent divorce, but a petition for contested
divorce can only be filed on a valid ground from divorce. Reasons for
divorce in India include adultery by the spouse, mental or physical
cruelty, desertion, conversion of religion, renunciation of the world,
mental illness, leprosy, venereal disease of communicable form, the
spouse is not heard being alive for 7 years, etc. Section 13 of the Hindu
Marriage Act, 1955 lays down the valid reasons for divorce in India.

 Maintenance/Alimony, Child Custody And Division Of

Property

In a divorce by mutual consent, the formalities relating to

maintenance/alimony, child custody and division of property are decided
by the husband and wife pre-hand. However, the issues relating to
alimony/maintenance, child custody and division of property are
contested like the divorce petition. The divorce lawyer in India files
separate petitions to deal with these issues in case of a contested divorce.

 Cooling Off Period

There is no concept of a cooling off period in a contested divorce as

there are no chances of reconciliation between the divorcing couple.
However, there is a cooling off period of 6 months in a mutual consent
divorce to give the couple some time to reconsider their decision. Under
the new divorce law in India, the cooling period may be waived off by the
court if it thinks that reconciliation is impossible and a cooling period
will only increase their suffering.

 Condition On Filing A Divorce Petition

Under the Hindu Marriage Act, a mutual divorce petition can only be
filed after at least one year has passed from the date of marriage.
However, this condition is generally ignored by the court in case of
contested divorce if the marriage is bringing hardship on a person.
The divorce advocate in India needs to file a leave petition with the court
to bypass this condition in a contested divorce.

 Filing A Divorce Petition

In case of mutual divorce, a joint petition is filed by the husband and

wife with the court in conjunction. However, in case of contested
divorce, the husband or wife files a one-sided divorce petition against the
other and the other spouse contests the divorce petition before the court.

 Time Taken In Divorce Process

A mutual divorce is considered as the fastest way to get a divorce in

India and a divorce decree is usually passed in 1-8 months by the court,
however, a contested divorce may take up to 1-2 years as there are more
formalities involved in a contested divorce as compared to a mutual
consent divorce.