I have written what I feel are important things most people are unaware of and should know. I have tried to cover most important branches of law.
This is based on my experience of past two years and I am likely to edit this answer in a few days to add more points -
In
the court of law, you cannot plead as defence the fact that you were
not aware of the law. This is what damns most people! And makes the
field of law extremely important if one wishes to survive in material
life.
Giving
a public notice in the newspaper is a must. It doesn't matter which
one. It need not be English. Any state language too will do. And any
newspaper with some circulation will do. This Public notice is what
protects your interest in the court of law if you face any litigation
regarding your purchased property.
Secondly, a legal search of
the property (not to be confused with physical search) has to be
conducted by hiring a lawyer following which he gives a title note. If
you approach nationalised banks for loan to buy property, their lawyers
conduct a search and give title note. But if not, you have to do it
yourself.
Lawyers conduct search by visiting sub registrar's office and checking the record of title documents.
Example
- You bought a flat without public notice and legal search, and turns
out the owner did not have a clear title. Now you along with the owner
are being sued for cancellation of your purchase.
In such a
case, the law / court is bound to protect the interest of a bonafide
purchaser if he had given a public notice and had conducted search. If
not, then the law is not going to protect your interest.
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EDIT - With due respect to all professions, this is a sincere advice - When
drafting agreements like Sale Deeds or Agreement to sell (These are
relating to buying properties), please take the help of your trusted
lawyer. Most people try to save the lawyer's fees by getting the
agreements drafted by Estate Agents. This in my experience, is a grave
mistake as Estate Agents are not qualified to draft agreements. They
have standard formats in which they fill your details.
Every
agreement that is drafted speaks for itself. Tomorrow if you end up in
court, the court is not going to ask you as to what was agreed between
you and the seller. They will read your agreement. Which is why, it
should be properly drafted.
An average lawyer will charge
somewhere between Rs. 8,000/- to Rs. 15,000/- to draft the agreement in
cities. An Estate agent takes around 4-5,000/- for this job.
Even then, spending a little more money to draft a good agreement which will save your trouble later is wiser.
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3. What should you do when someone gave you a cheque and it bounces? Assuming that you received payment for some work you did, and the cheque got bounced, what are your rights?
The reason I am including this in this answer is the fact that time is of essence in a cheque bouncing case.
The
moment a cheque bounces with the endorsement "Insufficient Funds", go
to a lawyer and send the person a legal notice demanding your money.
This
has to be done within 30 days of bouncing of the cheque. Once that
person receives your notice, he is required by law to pay you your money
within the next 15 days. His failure to do so, gives you a right to file a criminal case against him for cheque bouncing.
Cheque bouncing now is a criminal offence and he risks sitting in jail for it. 4. Streedhan in Hindu law - Whatever
money, jewellery etc. is given to a bride in her marriage by both her
parents as well as the groom's parents is legally her property. It is
known as Streedhan. So ladies, if you are leaving matrimonial home for
divorce, take your streedhan with you.
Most people later fight for it in courts as gold is extremely costly.
5. Devolution of property in Hindu Law - If
a Hindu man dies intestate (without making a will), his property
devolves as per the provisions of Hindu Succession Act. His mother, wife
and children all get an equal share in his property.
A man can only make a will and give away his
self acquired property. There is no limit to it.
If you have earned the property yourself then you can even give it away to a stranger.
Don't want to give your property to your wife and kids? Make a will and register it! But
if it is ancestral property, he cannot give away to stranger alone, as
his children and brothers (now sisters) too have joint rights. What he
can do is make a will of his share in the ancestral property.
6. Maintenance - Muslim womenMaintenance
of divorced Muslim women is actually a woeful tale on which I plan to
write an article soon. Anyway, so divorced Muslim women have no right to
maintenance from their husbands. Only if both the husband and wife make
an affidavit to be governed by Section 125 of the Criminal procedure
code, then she can claim maintenance under section 125.
Why
would a man do that? And obviously they don't. So, not only can any
random Kazi nullify their marriage, she has no rights whatsoever after
that. The law says that her parents, children or relatives are liable to
pay her maintenance. And if nothing works, she can claim maintenance
from the Wakf board of India which ends up giving nominal maintenance.
7. Special Marriage Act. Hindu
/ Christian / girls wishing to marry Muslim men should know exactly
what happens to their legal rights on conversion and marriage under
Muslim law.
Muslim men can legally have 4 wives. Muslim men can
also divorce you by triple pronouncements of the word Talaq. And if you
married under the Muslim law, you have no right of maintenance.
To
keep all your rights intact and make an informed choice, marry under
the Special Marriage Act specially made for such instances. One should
not land up in a situation where one has to regret later.
8. Registration of documents - Registration of all legal indentures related to immovable property more than Rs. 100/- is compulsory. This
includes your Leave and License (Rent agreement), Sale deeds, lease
agreements, gifts etc. Most people who don't register either don't know
this or are looking to save stamp duty.
Trust me, it is not worth it
to try and save stamp duty only to land up with litigation which will
cost you a hell of a lot more than just money.
Registration
means actually going to the Sub Registrar's office, and registering the
document there and not merely notarizing it with a Notary's stamp. 9. Police complaints and record creation. While
giving police complaints, please take help from a lawyer. Most lawyers
will draft the police complaint and give it to you. This is important
because should your complaint culminate into a case, police complaint
becomes an important piece of evidence.
10. Limitation. There is a whole Limitation Act to tell you about this, but I will only talk about the things which happen most often.
For
most civil case, the limitation to file a case is three years. Your
client breached your contract and owes you money, you have to file a
case within three years of his refusal to pay. After that your suit is
time barred and most likely be dismissed.
11. Arbitration - Arbitration
is a method of alternate dispute resolution. In this, Parties decide
beforehand that in case of dispute they will not go to court but rather
would appoint an independent arbitrator (s) to resolve their disputes.
ON
the face of it, this looks nice, you don't have to go to court, saves
money time and energy. These days, it has become a trend to have
arbitration clause in the agreement. From employment agreements to huge
deal between companies, you can see arbitration everywhere.
But
in my experience having an arbitration clause in your contract without
understanding the full implications of it can be very damning.
For
starters, people should know that once you write this clause you
completely close the doors of the court. If you have arbitration clause,
you cannot go to court. And an arbitral award is binding on the
parties just like a court decision. Further, appeal from an arbitral award can be made on extremely limited grounds.
So, what would otherwise give you three fora (District court, High
Court and then Supreme Court) to appeal, is completely gone through
Arbitration. So, you are left with no choices.
Plus remember that bribing an independent Arbitrator is way easier than bribing all the judges in these three different fora.
EDIT - As promised, and based on the comments - 12. Pre marital sex- Consensual
pre-marital sex is not illegal in India as long as the girl's age is
more than 16. The recent Madras High court judgement (
Couples who have premarital sex to be considered ‘married,’ says HC)
is very interesting. Note that this judgment is not binding on other
courts throughout India. And it is quite likely that it will be
challenged and the opinion of the SC will matter then.
13. Live in relationships in India - These
are not illegal and any two consenting adults have the freedom to live
together without marriage if they wish to. Domestic violence act too
takes this relationship into consideration and a woman can get relief
under the act even if she is not legally wedded to the man.
In fact
there is also an inclination to treat live in relationships like
marriage in Indian courts if the couple have lived together for many
years.
Children born out of live in relationships have a right to inherit their parent's property.
Also,
children born to mistresses (illegitimate children, only to make it
clear, I am personally against using the term) too inherit their
father's property and can claim maintenance.
14. Inheritance of ancestral property by women under Hindu law - Women
have an equal right of inheritance in ancestral property after the 2005
amendment to the Hindu Succession Act. Women can also demand partition
of the property and women can also be recognised as the Karta of Joint
Hindu family property now.
15. Public display of affection - Section
294 of the Indian penal code states that whoever commits obscene acts
in public places will be punished for a term which may extend up to 3
months. The word 'Obscene' is not defined as our definition of it keeps
changing with time.
Needless to say, your regular kiss, or
goodbye hug do not fall in this category. Therefore, public display of
affection is perfectly legal. Only when it inclines towards obscenity,
one may be punished.
Also, unfortunately, in spite of a sane law, you may still come across news of policemen harassing couples.
16. Pornography - In
India, watching or possessing pornographic material is not illegal. It
is illegal and punishable only when one sells, lets to hire,
distributes, publicly exhibits or in any manner puts it into
circulation.
Reference - Section - 292 of Indian Penal Code and Section 67 of Information Technology Act.
Will be adding more. Feel free to comment and suggest more topics.
