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How to file Judicial Custody of a Child

Whenever a couple decides to go for divorce due to any reason of the failure of their marriage, the most suffered one are the kids and this becomes more intense as well as difficult because a child who comes from a broken marriage needs a different kind of upbringing.

By: Sanya Barman, 3rd Year, BLS LLB, Rizvi Law College, Mumbai.

Introduction

Child custody is a process of caring and maintenance of the child who is less than 18 years by the custodial parent who has been granted rights by the court after looking at the set parameters such as financial security, understanding with child, the environment in the house, etc. The custodial parent has all the right to decide the best in the interest of the child with respect to education, lifestyle, medical and emotional needs, etc. while the non-custodial parent holds right to meet the child only.

But in many cases both the parents are given right to decide about their child interest but the physical custody is only given to one parent. This type of cases mostly take place when the divorce is takes place with mutual consent.

Types of Child Custody

  • Physical Custody- In this type of custody, child lives with the custodial parent while the other parent can only meet the child during the time duration set by the court.
  • Joint-Physical Custody- In this custody both parent have the physical custody of the child, child lives with both the parent for a significant time period. In such cases both parent have equal right on their child.
  • Sole Custody- In this custody the entire right to live with child is with the one parent only. This happens if the court finds out that the other parent is abusive, alcoholic, and violent or is a bad influence on child.
  • Third Party Custody- In this Custody, none of the biological parent get the custody but the third party gets it.

As per Hindu Minority And Guardianship Act, 1956 the Hindu child below the age of 5 years shall be kept under the custody of their mother as they need proper care emotional as well as physical which only a mother can give.

The custody of the boy or unmarried girl below the age of 18 and above the age of 5 shall be given to the father of the child and only after his death shall be given to the mother.

If the child is illegitimate then the custody shall be given to the mother.

If the parents are not willingly to take the custody of child or the court finds that for the betterment of child the custody must not be given to them only in that case the custody will be given to the third party. 

Factors that affect the custody of child 

Whenever the court has to decide the custody these factors are looked after for the betterment of child:

  • Mental, physical as well as emotional stability of the parent to make legal decision on the behalf of child.
  • Relationship bond between child and parent.
  • History of abuse, neglect or violence.
  • Financial status of both the parents are compared
  • Wishes of a child, in the case where a child can make an opinion of its own.

Conditions in which child custody is given to father

  • If mother is willingly giving the custody to father.
  • If the mother is mentally unfit to look after the child.
  • If the child is 13 above and desires to stay with his father.
  • If the court finds out that the mother is of immoral character.
  • If father can prove the court that mother is financially incapable to take care of child and he is financially capable to give best to his child.
  • If mother is a convict itself.

Child Custody Laws in India

  1. Guardian and Wards Act, 1890
  2. Section 26 of the Hindu Marriage Act, 1955
  3. Custody under Muslim Law
  4. Custody under Hindu Law
  5. Section 38 of Special Marriage Act, 1958
  6. Hindu Adoption & Maintenance Act, 1956
  7. Hindu Minority and Guardianship Act, 1956

A child custody cases can be filed in the jurisdiction of the family court where the minor child resides.

Procedure to file Child Custody Case

A petition for child custody regarding the appointment of natural or legal guardian of minor starts with the filling of the petition by the spouse seeking child custody.

How To?

How to draft a lease deed

A contract by which one party conveys land, property, services, etc. to another for a specified time, usually in return for a periodic payment.

By: Sanya Barman, 3rd year, BLS LLB, Rizvi Law College, Mumbai.

Introduction

Lease can be understood as a contractual arrangement of transfer of right to property for a certain period of time, in consideration of a price promised to pay periodically to the lessor by the lessee who accepts the transfer with terms and condition. Broadly put, a lease is a contract between two parties, the lessor and the lessee.

As per Section 105 of the Transfer of Property Act, the definition of lease can be understood as a contract drawing the terms and condition under which one party agrees to rent property owned by another party.

It guarantees the lessee, also known as the tenant, use of an asset and the guarantees the lessor, the property owner or landlord, regular payments for a specific period of exchange. Both the lessee and lessor face consequences if they fail to maintain the terms and conditions.

The contract contains the following:

  • Lessor- he is the entire owner of the property which is a subject for drawing lease.
  • Lessee- he is the person who acquires the right to use and enjoy the period for certain point of time.
  • Duration- Time duration for which the lessee is granted to enjoy rights of the property of the lessor.
  • Premium or Rent- It is a consideration for granting the right to enjoy the property in the form of one-time price paid or promised to pay known as rent.

Stages of a Lease deed

Negotiation Stage: this is the first stage of drafting a lease. The parties who are supposed to bind in contract must discuss all the aspect such as consideration, duration, mode of payment, etc.

  • Preliminary Documentation Stage: once the negotiation is done and all the terms and condition have been accepted by the lessee, the parties get into an agreement to understand the aspect of the deal and the duties and obligation of the respective parties.]
  • Title Investigation Stage: At this stage lessors title to the property and the Lessor’s ability to demise the property by way of lease in favour of Lessee is verified.
  • Drafting and Payment of Stamp Duty Stage: The lease can be demised by way of an Agreement to Lease however the preferred mode is a Lease Deed as it is not liable on future instrument. Once the document is drafted and approved by the parties; the payment of stamp duty can be undertaken on the lease deed.
    Execution and Registration Stage: At this stage premium is paid to lessor by the lessee. The parties can simultaneously exchange the consideration amount, take possession of the property and execute the Lease Deed.
  • Post Registration Stage: Once the registration is done and property is in possession of the Lessee, it is advised to jurisdiction over the property by government and semi-government bodies and be notified in writing about the change of holder.

It is important to note that as per Section 107 of the Transfer of Property Act,1882 and the Section 19 (1) (d) of the Indian Registration Act, 1908, it is mandatory to register the lease of an immovable property like office, house, etc. for a term exceeding one year or system of yearly payment of rent.

How To?

HOW TO FILE AN EXECUTION PETITION

After any judgment is delivered the next thing is to enjoy the benefits of the decree. To enjoy the benefits of the said decree or order one has to file for execution. Under CPC, the lengthiest Order i.e. ORDER XXI deal with the procedure followed to EXECUTE a decree or order of the Court.

By: Anukriti Mathur

The word execution is not defined under the CPC or any other law in force. But in wider sense, the word execution means enforcement or giving effect to judgment on order of Court of Justice.1 An execution is completed when the judgment creditor or decree holder gets monetary relief or other things awarded to him in the decree. In other words, execution is the enforcement of a decree by a judicial process which enables the Decree Holder to realize the fruit of the decree passed by the Competent Court in his favor.2

Who can apply?

  • Decree holder
  • Legal representative of decree holder when decree holder dies
  • Any person claiming title under decree
  • Transferee of decree holder when decree is written and duly executed

Against whom is decree to be executed?

  • Judgment debtor
  • Legal representative of decree holder when decree holder dies
  • Any person claiming title under decree
  • Surety of Judgment debtor

Which Court to execute?

  • The court who passed the decree
  • The court where such decree is sent to execute
  • The court in whose jurisdiction the property is situated which will be used for execution.

Procedure Of Filing Application For Execution

STEP 1 FILLING OF APPLICATION

Where a decree need to be executed an application is placed before the executing court. The application must be in writing, signed and verified by the decree holder or any other person authorized. 

The application must be accompanied by name of parties, case number, date of decree, amount so decided and certified copy of decree.

STEP 2 EXAMINATION OF APPLICATION BY COURT

When a court receive an application, it is the duty of court to see that the application so filed comply with rules 11-14 of Order XXI

STEP 3 ADMISSION OF APPLICATION

The court may admit the application if it complies with the Rules 11-14 and other conditions required by law. If it lacks anything, the court may return the application and see into the defects.

STEP 4 HEARING OF APPLICATION

Under rules 105-106 of Order XXI, the court may hear the grievances related to execution .The convenient mode to execute is chosen.

STEP 5 ISSUANCE OF NOTICE TO EXECUTE

The notices are issued under Rule 22 to show cause if

  • Execution is filed after 2 years of actual decree
  • Execution is made against legal representatives
  • Execution is to be made in case of reciprocating territory
  • Execution is to be made against insolvent person
  • Execution is to be made against surety
  • Execution is to be made by assignee or transferee of decree holder
  • Execution is of money decree and arrest is to be made for the purpose.

STEP 6 DECIDING THE MODE

The decree holder is allowed to choose the mode to execute if no mode has been expressly put forth in the decree. The court has to choose from the following modes to execute:

  • Sale and attachment
  • Attachment without sale
  • Arrest and detention
  • Appointment of receiver
  • Any other available mode

STEP 7 STAY ON DECREE

If the judgment debtor shows reasonable ground to stay execution of decree under rule 26, the execution is stayed. The reasonable ground includes appeal to higher court or at times error on face of decree.

STEP 8 ISSUANCE OF ORDER TO EXECUTE THE DECREE

The court after due enquiry if is satisfied, it issue appropriate direction to take necessary action in order to execute the decree.

End note

  • Ghan Shyam Das Gupta And Anr vs Anant Kumar Sinha And Ors1991 AIR 2251, 1991 SCR Supl. (1) 119
  • Desh Bandhu Gupta vs N.L.Anand & Rajinder Singh 1994 SCC (1) 131, JT 1993 (5) 313
How To?

How To File A Judicial Review

Judicial review in India can be applied in the form of writ petitions in High Courts or Supreme Court under Article 226 and Article 32 respectively. 


By: Rajrishi Ramaswamy, Second Year B.B.A. LL.B, Symbiosis Law School, Hyderabad

What is meant by Judicial Review

Judicial review is the power of a higher court to test the constitutional validity of legislation passed and invalidate it if it is in violation of Fundamental Rights or if it violates the basic structure doctrine.

The Supreme Court is empowered under Article 32 to deal with cases of judicial review and the High Court, subject to Article 131-A can deal with judicial review of the validity of State laws alone and can issue writ petitions under Articles 226 and 227.

Steps to file a writ petition for judicial review in the Supreme Court

For filing a writ petition for judicial review in the Supreme Court, one can approach the filing counter physically or can also file the petition online at the Supreme Court’s website, at https://main.sci.gov.in/efiling

The format for filing a writ petition is briefly described hereunder and the same can be accessed at https://main.sci.gov.in/pdf/writ%20format.pdf:

Other requirements

Along with 5 copies of the original writ petition, a signed affidavit which will be provided at the filing counter will have to be submitted by the petitioner and it includes: 

  • A prescribed cover page,
  • An index, 
  • Annexures as may be required and
  • A memo of appearance for which fees have to be paid.

Steps to file a writ petition for judicial review in the High Court

Under the five kinds of writs the High Court can issue, the writs relating to judicial review are usually considered to be Certiorari and Mandamus. Once the writ has been drafted in the format mentioned hereabove, one has to approach the High Court of competent jurisdiction and submit the drafted writ at the filing counter. The format for each of the writ petition can be accessed on the respective High Court’s website.

Other necessary documents are similarly required as previously mentioned. 

How To?

How to File A Suit for Recovery of Money

A brief action or summary procedure is available for recovery of money under the Civil Procedure Code, 1908,  by way of the institution of a suit in a court of appropriate jurisdiction. Order 37 CPC is one of the best provisions in the hands of a proposed Plaintiff, wanting to institute a Civil Suit. The article enumerates the steps involved in filing the suit for the recovery of money.

By: Pallavi Kumari, 2nd Year, LLB, Symbiosis Law School, Pune.

Civil remedy

A Suit for recovery of money is a civil remedy and acts as an effective tool to recover money from the defaulter. The suit can be established under Order IV of the Code of Civil Procedure 1908 (CPC). It is generally like a summary suit (Order 37, Code of Civil Procedure) which offers expeditious disposal of the suit as here the defendant is not entitled to defend as a matter of right but only after applying for leave of the court, he can defend.

Jurisdiction 

According to Order IV of the Code of Civil Procedure 1908 (CPC),  a suit can be filed at any place where the Defendant resides; or any place where the defendant carries on business or personally works for gain; or the cause of action wholly or partly arises.

Pecuniary jurisdiction is determined after considering the territorial jurisdiction. Based on the pecuniary value of the suit, it is decided whether the suit will be filed either in the district court or in the high court.

Competent parties

Companies, partnership firms, proprietorship firms, and traders, etc., are competent to file a suit for recovery of their unpaid bills or Business outstanding amount or payment where there is any written contract/agreement between the parties.

Limitation period

The time period for filing a civil recovery claim in India is limited to three years from the date of cause of action has arisen. The suit exceeding the period of limitation will not be taken into consideration. If the suit is instituted after the expiry of the limitation period, the grounds for claiming the exemption must be stated.

Documents required

Any document verifying the grant of money from a person to the defaulter is enough to prove the debt. To file a suit to recover a debt or request a liquidator of the funds paid to the defendant, with or without interest, arising from a written contract, or  In the case of enactment, if the amount to be recovered is a fixed amount of money or like the debt other than the penalty, or on a guarantee, if the claim against the Director relates only to a debt or a liquidator’s request.

If the contract or agreement is not in writing, a simple civil action will be filed based on the truths and circumstances of the cases.

Bank account transactions, promissory notes, a contract or other payments so made serve as legal evidence of the lending of such money. Also, Any document, contract, message, telephonic conversation, mail, or post can serve as proper evidence in the Court of law to prove your debt.

Institution of suits under order IV of CPC

Every suit is instituted by way of a plaint. A plaint is the description of facts of the case and the exact amount being claimed along with interest if any. In every such plaint, the facts are to be proved by an affidavit.

A suit is instituted when the plaint is presented, and not when the suit is registered.

A plaint must contain the following particulars:

  1. Name of the court
  2. Name, description, and place of residence of the plaintiff
  3. Name, description, and place of residence of the defendant
  4. Facts constituting the cause of action, when it arose
  5. Facts showing that the court has jurisdiction
  6. The relief the plaintiff claims; the plaintiff’s costs (Prayer clause)
  7. Any set-off or relinquishment of his claim by the plaintiff
  8. Value of the subject matter of the suit for the purposes of jurisdiction and court fees
  9. Signature and verification

Recovery of money is a specific case, and in such cases, the exact or approximate amount claimed must be mentioned in the suit.

Proceedings after institution

  • Issuance of summons: A  summon is a document issued from the office of a court, calling upon the person to whom it is directed to attend the court before a judge or an officer of the court for a certain purpose. The Court after examining the plaint and its admissibility shall issue a summon which is required to be duly sent to the Defendant within 30 days of the institution of the suit.
  • Written Statement: A written statement is a reply to the plaint filed by the plaintiff. The Defendant must at or before the first hearing or not more than 30 days from the date of summoning present a written statement of its defense. In the written statement, the defendant is required to state new facts in its favor or take legal actions against the plaintiff’s claim. 
  • Framing of Issues, Trial and Arguments: After framing of issues involved in the suit, the next stage is the settlement of issues, and finally, the trial shall commence. After consideration of all the evidence, the final arguments would be heard and the suit will be decreed.

Once the suit is registered and summon is issued, the defendant has 10 days to make an appearance, failing which the court assumes the plaintiff’s allegations to be true and, accordingly, awards the plaintiff.

Court fees

As per the schedule, the court fee is required to be paid by the Plaintiff. A suit shall not be accepted in case the same is not filed along with the court fee.

Execution of a Decree

The next step when a person obtains a decree from a court of law against another person,  he is to get the decree satisfied. Execution proceedings are the processes by which a person moves to the court for the satisfaction of the decree. Execution is the enforcement of an order or giving effect to the judgment of the court. The execution comes to an end when the judgment-creditor or decree-holder gets cash or other thing granted to him by judgment, decree, or order.

Reference

1.https://www.indialawoffices.com/knowledge-centre/recovery-suit#:~:text=The%20civil%20remedy%20for%20recovery,Civil%20Procedure%201908%20(CPC).

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