Is adultery a heinous crime ?

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While adultery is a punishable crime in countries like India, it is not a crime in some of the western countries like France and Germany. Having sexual intercourse with a person other than your own spouse is called adultery. Therefore, in legal parlance adultery may be defined as an extra-marital relationship.

Though adultery may not seem to be a gravest crime, still it sometimes plays havoc in the life of a person by inducing him or her to commit gravest crimes. When we analyse the actual causes for such crimes, they invariably point an accusing finger towards our culture and tradition. In the Indian society in the case of married couple fidelity of a spouse to his or her spouse is always expected and insisted upon.

But in the case of a person who is living in adultery or committing adultery, he or she is always conscious of the fact that he or she is flouting the culture and tradition and fidelity is becoming a casualty. At the same time he or she is afraid of public reprobation apart from the legitimate and strong objection that he or she may encounter from his or her spouse.

Hence, a spouse in the process of committing adultery, when it is known to his or her spouse, naturally expects a violent and recurrent reaction from his or her spouse. To be on guard against such reaction, the spouse who is living in adultery may launch a violent attack against his or her spouse resulting in a gravest crime, sometimes even a murder.

Recently, a Sessions Court at Villupuram, in Tamil Nadu, wherein a murder case was tried, witnessed such a pathetic case. A woman, who was living in adultery with her paramour, killed her husband by pouring kerosene on him, when her husband came to know about her adultery. Unfortunately, the woman's crime was witnessed by her own 7 years old son and 12 years old daughter. Both of them were put into the witness box and they categorically deposed that their mother was living an immoral life and killed their father.

The woman was convicted with life imprisonment and when the news of her punishment was made known to her, she wailed tremendously and repented for what she had done. She also pleaded not guilty for fear of leaving her children uncared for like orphans, when she becomes a life convict.

Now a real question mark hangs over the future of the two of her young children who are not even teens. Hence, when we view adultery in the background of the above case history, it is a heinous crime since it always encourages the commission of yet another horrible crime.

The Indian Penal Code, 1860

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How to create a power of attorney ?

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Without knowing the nuances of creating or entrusting power and understanding its legal implications, many of us become victims by becoming a party to a Power of Attorney. They are often misguided by the non-professional people called document writers and self-styled village lawyers, who are utterly ignorant of the legal principles involved in a Power of Attorney.

Power of Attorney is a deed or document executed by a person in favor of another person entrusting with him a specific task like conveying an immovable property or properties, completing a project like house building or renovation, conducting a court proceeding and its connected activities and collection of debts etc. The person who executes the deed of Power of Attorney is known as the principal and the person in whose favor the power is executed is known as the Power of Attorney or the Power Agent.

When a person is handicapped by virtue of his age, distance and preoccupations, he or she executes a Power of Attorney in favor of a person, who is his or her close confident. If the power entrusted is for a specific purpose or task, say for building a house or conveying an immovable property, it is known as Specific Power of Attorney or Special Power of Attorney If the power conveys general powers and duties in favor of a person, it is known as the General Power of Attorney. While the Specific Power of Attorney ends as and when the task is completed, the General Power of Attorney comes to an end when the principal is dead or when the principal cancels it by issuing a notice to his agent.

In some special cases, an Irrevocable Power of Attorney is created in favor of an agent and the power given is coupled with an interest. If the principal entrusts a power of collecting a debt from a third party to his agent and also entrusts to him to discharge the debt of yet another party to which he (principal) owes a debt, the power entrusted to the agent is irrevocable until the principal's debt is discharged. It requires no consideration in creating an 'Irrevocable Power of Attorney'.

The cardinal principle of a Power of Attorney is whatever the agent does it is deemed to be the act of the principal as if he or she does it personally. Here lies a source of conflict or dispute, when the Power of Attorney or Power Agent sometimes transgresses his or her limit and also fails to honor the terms of the Power of Attorney.

Though the Power of Attorney does not require registration, when the power agent is entrusted with a power of submitting a document for registration, then the Power of Attorney requires registration. Normally an unregistered deed of power of attorney is executed in a twenty rupees stamp paper.

The Power of Attorney Act, 1872 was enacted in the pre-independent era that consists of only six sections and was not comprehensive enough. The Indian Contract Act, 1872, enumerates the powers, duties and obligations of both the principal and the power agent.

Therefore, before executing a power of attorney, it is always advisable to consult a lawyer than fall a prey to unscrupulous people who have very little knowledge about the salient features of a power of attorney.

Source:

1) The Power of Attorney Act, 1872

2) The Indian Contract Act, 1872

3) The Indian Conveyancer by Mogha

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Why do I have this blog ?

Hello, I welcome every one of you to my blog, titled 'Legal Articles.com'
I have created this blog mainly with the idea of creating unique legal articles, so as to share my experience in the legal field as well as to enrich my legal knowledge.
I am interested in writing articles generally and with particular reference to my legal expertise also.

I want to devote this blog exclusively to the legal articles only because if I post unique legal articles along with general articles in my other blogs,'rabasure.blogspot.com' and 'rabasuresblog.blogspot.com', sometimes the unique legal articles may lose their relevance and identity.Sometimes, they also lose their large viewership which they actually deserve.Moreover,as my title itself suggest, eventhough I may be practising law in India, I do not want to confine my attention to Indian laws only.I want this blog to be a site of comparative study of various laws that prevail in both eastern and western countries.

I also have some specific ideas to enrich this blog by focussing my attention by devoting separate space for legal articles which have a relevance to Indian people.I also intend to devote separate space for other legal articles with special reference to western countries.

It is also my idea to have a targetted traffic to my site from those who want to have a solution to their legal problems.

Therefore, I have made my intentions clear and have given only an outline of my future plans of my actions by using this site.

Therefore, I stop here leaving the rest for tomorrow.

A Unique Act called ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007”

A Unique Act called ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007”

The Indian legislature has enacted ‘The Criminal Procedure Code, 1973, The Hindu Marriage Act, 1955, The Divorce Act, 1869 and The Hindu Adoptions and Maintenance Act, 1956 etc for providing maintenance to the uncared for spouses, children, sons and daughters and parents as well. While ‘the Hindu Marriage Act and the Hindu Adoptions and Maintenance Act’ are applicable to the people professing Hindu religion only, the Criminal Procedure Code, 1973 and the Divorce Act, 1869 are general in nature and they are applicable to the people professing all religions. It is well known that a muslim lady namely ‘Shah Banu’, hailing from Kerala, fought all the way up to the Supreme Court of India, to claim maintenance from her husband under Section 125 of the Criminal Procedure Code, despite of facing a very stiff resistance from the Islamic outfits.

But none of the above mentioned acts bestow any special attention on the aged people or the senior citizens, who have been hitherto been neglected. But the recently enacted act ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007’has sought to redress this grievance with an emphasis and focus on the senior citizens.

It is really disheartening to note that the senior citizens are mostly neglected, become desolate and find it very difficult to eke out their livelihood. Some of them manage to find a place in the ‘Homes for the Aged’, some of them choose to beg and most of them die of starvation and uncared for. ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007’ has made an earnest attempt to render justice to them.

The act is very brief with only 32 sections. It applies exclusively to the senior citizens who are above the age of 60.Some of the salient features of the act are:

1)It provides for summary proceedings within a period of 90 days from the date of filing a petition in a specially constituted Tribunal for this purpose. The Tribunal is manned by an officer not below the rank of a sub- divisional officer.

2)The senior citizen can either apply to a Tribunal where he resides or where his son or daughter or his near relative resides from whom he or she claims maintenance.

3)An uncared for or a childless senior citizen, though he or she possess property but does not derive any income from it, can seek maintenance from his son or daughter or from his relative or relatives, who will inherit his or her property after his or her death.

4)The senior citizen can either apply in person or through a person authorized by him or through a voluntary organization registered under the Societies Registration Act.

5)The Tribunal on receipt of a petition will suo motu take it on file and refer it for a conciliation by a conciliation officer within a period of one month.

6)The Tribunal enjoys the power of a first class magistrate for enforcing and summoning the attendance of persons against whom the petition has been filed.
7) The Tribunal follows the same procedure of a civil court to adduce evidence from the petitioner and the respondent
8) The Tribunal can pass an order granting a maximum sum of Rs 10,000/- as maintenance to the senior citizens.The maximum amount is subject to the regulation of the concerned state government.
9) The person against whom an order for maintenance has been passed has to comply with the order within one month, failing which the Tribunal can imprison him or her up to a period of one month.
10) The maintenance amount shall also carry an interest varying between 5 % and 18 %.
11) The act provides for the District Welfare Officer to act as maintenance officer and even to conduct the proceedings for and on behalf of the senior citizens.
12) The Act provides for the establishment of old age homes for the senior citizens by the concerned state governments.
13) Preferential treatment should be given to the senior citizens in the hospitals like separate queues, treatment, offering medicines and also promotion of research in the geriatric medicine.
14) Civil courts have no jurisdiction to interfere with the proceedings of the Tribunals like grant of stay, ordering transfer etc.
15) Senior citizens cannot be represented by any legal practitioner.
16) State governments are empowered to enact rules for the effective implementation of the Act.
17) If a person who has been looking after a senior citizen forsakes him or her, he or she will be punished by the Tribunal.
18) Appeal can be preferred against the order of a Tribunal and the appeal should be disposed of within one month.
19) A senior citizen can seek maintenance for the purpose of his or her food, shelter, clothes, medical facilities and recreation etc.
20) A senior citizen who has transferred his property either to his son or daughter or near relative, by virtue of a will or gift, can now get it cancelled by applying to the Tribunal, if he or she is neglected by the legatee or the donee.
21) The provisions of the act have overriding effect. If any provision of any other act is inconsistent with the provisions of this act, it will prevail over others..

Though the acts’ genuine concern for the senior citizen cannot be overlooked, the act has the following demerits also.

1) The Tribunal is not manned by a person with a judicial qualification or acumen or experience. It is not known how they will adjudicate into the matter in accordance with the procedure followed by a civil court.
2) Complete exclusion of the professional lawyers from the purview of the Tribunal simply defies logic and reasoning.
3) The Act entrusts the entire responsibility of establishing Tribunals, enacting rules etc to the concerned state.
4) The presiding officer of the Tribunal has no power of discretion in awarding the maintenance amount and the power is vested with the state government.
5) Imposing liability on a person who happens to be a relative of the senior citizen on the ground that he will inherit the property of the senior citizen is illogical and unreasonable because the senior citizen may sell his property to any third party before his death and there is no guarantee that the relative will definitely inherit the property of the senior citizen.

6) The exclusion of the jurisdiction of civil courts is not justified, because Tribunals are not manned by legally qualified or experienced persons.
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7)It seems that most of the state governments are not serious in implementing the provisions of the act and only a few states like Andhra Pradesh have so far come forward to notify the act in their gazette.

Therefore, in order to implement the act more effectively and render justice speedily, the central government should come forward to remove the above mentioned drawbacks. Otherwise, the real objectives of enacting the above act to rescue the senior citizens may not be fulfilled.