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This post deals with the concepts of succession, adoption and gifts in family law. It shall also discuss the concept of domestic violence and the legislation that deals with it.


SUCCESSION


The concept of succession has been dealt with extensively in various Acts. Succession implies the act of succeeding or following, as of events, objects, places in a series. In the eyes of law however, it holds a different and particular meaning. It implies the transmission or passing of rights from one to another after death of the person who held the right in the first place. In every system of law provision has to be made for a distribution of things or goods on the death of the human beings who owned and enjoyed them.

A person, so long as he is alive, is free to deal with his property in any manner he likes. By making a will he is free to determine a scheme of distribution of his propertyafter his death. This is known as a testamentary disposition. If he dies without leaving a will, then is is said that he has died intestate and it is the object of the law of inheritance to determinethe persons who will take his property. In our contemporary world, the following could be the owner of property:

a) an individual,

b) corporate person or

c) State


The law of succession is classified under:

a) Testamentary Succession

b) Intestate Succession


TESTAMENTARY SUCCESSION


The law of testamentary succession is concerned how best the effect could be given to the wishes of the testator (one who made the will); what are the rules relating to making of a will and allied and subsidiary matters. The testator enjoys full freedom of bequeathing his property. All matters relating to testamentary succession are laid down in the Indian Succession Act, 1925.

On the other hand, if a person dies without making a will is known as ‘intestate’. The Hindu Succession Act mentions that a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect.


INTESTATE SUCCESSION


The law of intestate succession concerns with matters such as who are the persons entitled to take the property, i.e.; who are the heirs, what are the rules of preference among the various relations; in what manner the property is to be distributed incase a person has more than one heir; what are the disqualifications of the heirs and other subsidiary matters. The law of intestate succession is more properly the law of inheritance.


WILLS

A Will or a Wasiat, as it is normally referred to in the Indian sub-continent is a legal declaration made in writing by a person which clearly sets out the manner in which s/he would like his or her property (movable and immovable), where ever situated, to be distributed after his death. The Maker of the Will is called the Testator in law. A Will is therefore, a document which comes into effect the moment the Maker dies. A Will lies dormant so long as its Maker is alive. A Will can be altered as many times as the Maker wants.


DOMESTIC VIOLENCE


In India, domestic violence falls under the category of cruelty. Cruelty is an offence in Criminal Law under S.498A,of the Indian Penal Code which is applicable to women. Women also have such special rights against domestic violence and ill-treatment under international law like in the Convention on Elimination of Discrimination Against Women, which is an important UN convention.

Domestic Violence Act 2005 is the first significant attempt in India to recognise domestic abuse as a punishable offence, to extend its provisions to those in live-inrelationships, and to provide relief to the female victims of domestic violence. However, it protects only women members and children of a household.

Children are also covered by the Act; they too can file a case against a parent or parents who are tormenting or torturing them, physically, mentally, or economically. Any person can file a complaint on behalf of a child.



ADOPTION (HINDUS)


The ancient Hindu law of adoption was mainly based on the religious belief that a son was absolutely essential not so much for the material welfare of man as for his spiritual salvation. However, with the passing of the Hindu
Adoptions and Maintenance Act, 1956, the law of adoption applicable to Hindus has undergone a radical change. Under the present law, the religious motive underlying adoption is completely superceded. Unlike
the ancient Hindu law, the Act now allows not only an adult person, married or unmarried, to adopt a child (a boy or a girl), and also allows an adult woman (unmarried, widowed or divorcee) a right to adopt a child to herself. The Act deals with:


  • the capacity to adopt;
  • the capacity to be adopted

  • the capacity to give in adoption, and

  • the effect of adoption.

GIFTS


The Transfer of Property Act defines the concept of “gifts”. Gift is the transfer of certain existing movable and immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Under Hindu Law, no writing was necessary for the validity of gift. Hindu Law insisted on the delivery of possession. Essentially, gift is the relinquishment of ones’ right in the concerned property, without having any consideration in return. However, the creation of the other man’s right, i.e.; the one who receives the gift, is completed on the acceptance of the gift and not otherwise.

A gift once made and completed in all respect cannot be revoked by the donor unless it was obtained by fraud or undue influence.

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Comment by Nikunj Rathore on March 5, 2010 at 12:08am
:)
Comment by Nikunj Rathore on February 18, 2010 at 8:08pm
nice

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