What are the basic aspects of Indian law that every Indian should know?
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 -
First thing -
1. Ignorance of law is no defence -
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.
2. While buying an immovable property - (Like Flat or Land) -
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.
-------------------------
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.
-------------------------
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 women
Maintenance 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.
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 -
First thing -
1. Ignorance of law is no defence -
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.
2. While buying an immovable property - (Like Flat or Land) -
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.
-------------------------
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.
-------------------------
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 women
Maintenance 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.
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