Natural Justice

What is Natural Justice?

Natural Justice in simple terms can be defined as the minimum standards or principles which the administrative authorities should follow in deciding matters which have the civil consequences. Natural Justice represents higher procedural principles developed by judges which every administrative agency must follow in taking any decision adversely affecting the rights of a private individual. One of the cardinal principles of the administrative law is that any action which has civil consequences for any person cannot be taken without complying with the Principles of Natural Justice.

The Principles of Natural Justice are firmly grounded under various Articles of the Constitution. There are mainly two principles of Natural Justice – 

(a) Rule against Bias & (b) Rule of Fair Hearing.

Concept of Natural Justice

Natural Justice is a concept of Common Law and it is the Common Law which is the counterpart of the American concept of procedural due process. Natural Justice implies – fairness, reasonableness, equity and equality.

The concept of doctrine of Principles of natural Justice and its application in justice delivery system is since the beginning of justice delivery system.

Natural Justice represents higher procedural principles developed by judges which every administrative agency must follow in taking any decision adversely affecting the rights of a private individual.

Natural Justice is an expression of English common law which involves a procedural requirement of fairness. The term Natural Justice signifies basic principles of justice which are made available to everyone litigant during trial.

Historical background & development: 

Natural Justice is not a creation of Constitution or mankind; it is originated along with human history and civilization. The Greeks accepted the principle that no one should be condemned unheard. It was first applied in ‘Garden of Eden’ where opportunity to be heard was given to Adam and then he was punished.

Principles of Natural Justice are also found in (a) Arthsastra  written by Kautailya; (b) Manusmriti and many different texts as well. Before the beginning of era of Christ, Aristotle spoke about Principles of Natural Justice and called it as universal law.

Legal evolution: 

The birth of the Principle of Natural Justice cannot be ascertained in single time frame as it took its shape and necessity during the course human civilization. But, the Principles of Natural Justice through various decisions of courts can easily be ascertained through their application in a given situation may depend on multifarious factor. Hon. Supreme Court many times in its judgement talked about natural justice.

Constitutional provision: 

The Principles of Natural Justice are firmly grounded under various Articles of the Constitution. All fairness which is included in the principles of Natural justice can be read into Article 21 of the Constitution.

Article 14 applies not only to discriminatory class legislation but also to arbitrary or discriminatory State action. When a person is deprived of his/her life and personal liberty.

Violation of Natural Justice results in arbitration, therefore, violation of natural Justice is violation of Equality Clause of Article 14. As a result now, the principle of natural justice cannot be wholly disregarded by law because this would violate the fundamental rights guaranteed by Article 14 and 21 of the Constitution.

Norms of Natural Justice: 

a. No one should be condemned unheard;

b. No one shall be judge in one’s own case;

c. A party is entitled to know the reasons for the decision;

d. Making available a copy of statutory report.

The application of the principles of natural justice varies from case to case depending upon the factual aspect of the matter.

Writ Petetions

What Is A Writ?

A writ is a formal written order issued by Apex or Higher courts with more power. It is given to a court with a lower jurisdiction or public office or govt/semi-govt institutions or to an individual if any citizen’s fundamental rights are violated. A writ may be issued by the Indian Supreme Court in accordance with Article 32 of the Indian Constitution. The High Court also has this authority under Article 226. 

Lets understand the basic differences between Article 32 and Article 226 of the Indian Constitution.

Why Writ Is Required?

A writ petition is typically filed when someone’s fundamental rights have been violated or they have been the victim of injustice. For the following reasons, it is essentially a corrective measure provided by the constitution against the nation’s body responsible for maintaining law and order:

To assist people in defending their rights against judicial orders

The legal system’s authorized higher authorities do not object to providing an alternative to the harmed in the event of an accusation to guarantee that justice is administered and not obstructed.

In simple terms, enforcement of the Article 32 and 226 is done with the help of five prerogative Writs .

The following outlines the type of Writs, the steps to be taken, and the requirements that the petitioner must meet in the event that any fundamental rights have been violated.

1. Writ of Habeas Corpus:

You should have the body. 

Purpose: Release the person from illegal detention, Challenge the legality of detention.

Scope: 

• It is in the nature of an order calling upon the person who has detained another to produce the latter before the court 
• To know on what ground he has been detained 
• To set him free if there is no legal justification for the imprisonment 

Landmark Cases:

• Kanu Sanyal v. District Magistrate

the court may examine the legality of the detention without requiring the person detained to be produced before it 

• Sheela Barse v. State of Maharashtra

if the detained person is unable to pray for the writ of habeas corpus, someone else may pray for such writ on his behalf. 

• Nilabati Behera v. State of Orissa

The petitioner was awarded compensation of Rs. 1, 50, 000. 

2. Writ of Mandamus 

It is a courts order of commanding an inferior court or public authority to perform an official duty correctly

The Writ can granted against a public authority if :

• Acted against the law
• Exceeded his limits of power
• Acted with malafides 
• Did not apply his mind
• Abused his discretionary powers
• Did not take into account relevant consideration 
• Has taken into account irrelevant consideration 

Landmark cases:

• Hemendra v Gauhati University : 

Mandamus was issued to direct a University to announce that the petitioner has passed where, University had refused so to declare though the petitioner had obtained the pass marks required by the statutory rules of the University. 

• Barada Kanta v State of West Bengal : 

Writ of Mandamus cannot be issued against an individual person or any private organization because they are not entrusted with a public duty. 

3. Writ of Certiorari 

It means “To be Certified” Both preventive and curative. 

Issued by SC and HC’s for quashing the order of any inferior court, tribunal or Quasi- Judicial body. 

Propositions laid in issuing this writ by the High Court in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233) 

It is issued to correct the errors of Jurisdiction. 

When court or tribunal acts illegal in its jurisdiction. 

Order against principles of natural justice. 

Court acts in exercise of its supervisory and not appellate Jurisdiction. 

An error in the decision or determination itself may also be amenable to a writ of Certiorari. 

Landmark cases

Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors., (1958) SCR 1240, the parameters for the exercise of jurisdiction. 

1. Check whether inferior court has exceeded its jurisdiction. 

2. Mere formal and technical errors doesn’t attract this. 

4. Writ of Quo-Warranto 

It means “what is your authority”. 

Issued to restrain a person from holding a public office. 

Conditions: 

Public office created by a statue 

Person to be appointed by a statue or statutory instrument. 

Illustrations: 

a) Subramanian Swamy petition against Jayalalitha in 2001. Two PIL’s against her appointment. 

b) Manohar Reddy vs Union of India: two advocates filed a petition quashing the appointment of a Judge of a HC of AP and a writ is in the nature of Mandamus commanding the Bar Council of AP to cancel the enrollment as an advocate N V Ramana. 

5. Writ of Prohibition 

Purpose:

It is to forbid or to stop called as “Stay Order”

Issued in cases where is excess of Jurisdiction and where there is absence of Jurisdiction. 

When the proceedings are pending in the court. 

Issued by both SC and HC’s to any inferior court or Quasi- Judicial Body but not against legislative or administrative body 

Adoption Process

ADOPTION PROCEDURE FOR RESIDENT INDIANS

It is a legal and emotional process that involves accepting the responsibility of caring for a child who is not biologically related to the adoptive parents.

The process of adoption in India is monitored and regulated by the Central Adoption Resource Authority (CARA), which is part of the Ministry of Women and Child Care.

CARA is the nodal body for adoption of Indian children and is mandated to monitor and regulate in-country adoptions.

CARA is also designated as the Central Authority to deal with inter-country adoptions in accordance with the provisions of the Hague Convention on Inter country Adoption, 1993, ratified by Government of India in 2003.

Laws Related to Adoption in India:

Adoptions in India are governed by two laws: the Hindu Adoption and Maintenance Act, 1956 (HAMA) and the Juvenile Justice Act, 2015 (JJ).

Both laws have their separate eligibility criteria for adoptive parents.

Those applying under the JJ Act have to register on CARA’s portal after which a specialised adoption agency carries out a home study report.

After it finds the candidate eligible for adoption, a child declared legally free for adoption is referred to the applicant.

Under HAMA, a “dattaka hom” ceremony or an adoption deed or a court order is sufficient to obtain irrevocable adoption rights.

Hindus, Buddhists, Jains, and Sikhs are legalized to adopt kids under this Act.

A. Registration and home study of the prospective adoptive parents.― 

(1) The Indian prospective adoptive parents, if interested to adopt an orphan or abandoned or surrendered child, may apply for the same on the Designated Portal ‘https://carings.nic.in /Parents/PAPsRegistration.aspx?Pagetype=I’ by filling up the online application form, as provided in the Schedule VI, and uploading the relevant documents within thirty days thereby registering themselves as prospective adoptive parents.

(2) The prospective adoptive parents shall be permitted two state choices or they may choose a cluster of states as per their identification.

(3) Registration on the Designated Portal shall be a deemed registration in all Specialised Adoption Agencies of the State or States they have opted for.

(4) The prospective adoptive parents shall get their registration number from the acknowledgement slip which may be used for viewing the progress of their application.

(5) The registration shall be completed and confirmed to the prospective adoptive parents immediately once the application form as provided in the Schedule VI are uploaded on the Designated Portal.

(6) After registration, prospective adoptive parents shall apply to a Specialised Adoption Agency or District Child Protection Unit nearest to their residence for conducting the Home Study.

(7) The Home Study Report of the prospective adoptive parents shall be prepared through the social worker of the selected Specialised Adoption Agency or the empanelled social worker of the District Child Protection Unit or the State Adoption Resource Agency who shall also be responsible for providing pre-adoption counselling to the prospective adoptive parents.

(8) The Home Study Report shall be completed in the format given within sixty days from the date of submission of requisite documents and shall be shared with the prospective adoptive parents immediately, thereafter.

(9) The Home Study Report shall be posted on the Designated Portal by the Specialised Adoption Agency within a period of three days from the date of completion of Home Study Report.

(10) The Home Study Report shall remain valid for three years and shall be the basis for adoption of a child by the prospective adoptive parents from anywhere in the country.

(11) The District Child Protection Unit shall facilitate online registration of application of prospective adoptive parents, uploading of their documents and also for addressing technical difficulties faced by the Specialised Adoption Agencies.

(12) The adoption of a child by the prospective adoptive parents, after completion of their Home Study Report, shall depend upon the availability of a suitable child.

B. Referral of a child from a Specialised Adoption Agency through the Designated Portal to prospective adoptive parents.―

(1) The seniority of the prospective adoptive parents for child referral shall be from the date of completion of registration process on https://carings.nic.in

(2) On the basis of seniority, the prospective adoptive parents shall be referred maximum three referral with one month interval in between two consecutive referrals subject to availability of children through the Designated Portal which shall include their photographs, Child Study Report and Medical Examination Report, in their preference category, if any, from one or more Specialised Adoption Agencies.

(3) After viewing the profile of the child or children on the Designated Portal, the prospective adoptive parents may reserve the child or children within a period of forty-eight hours for possible adoption and the unreserved child or children shall be released by the Designated Portal for other prospective adoptive parents in the waiting list.

(4) The Specialised Adoption Agency shall get the details of the prospective adoptive parents through the Designated Portal for fixing an appointment with the prospective adoptive parents for matching, to assess the suitability of the prospective adoptive parents by an Adoption Committee and the Adoption Committee shall prepare the minutes of the meeting.

(5) The Chairperson and another member shall form the quorum of the Adoption Committee in case of adoption from a Specialised Adoption Agency and in case of adoption from a Child Care Institution, the committee shall constitute Chairperson and two other members of the committee.

(6) The Adoption Committee shall scrutinise the requisite documents as stipulated for the prospective adoptive parents as prescribed.

(7) The Specialised Adoption Agency shall organise a meeting of the prospective adoptive parents with the child.

(8) At the time of matching, the social worker of Specialised Adoption Agency concerned shall orient the prospective adoptive parents for taking care of the child and also older child or children about their rights and responsibilities.

(9) The entire process of matching shall be completed within a maximum period of thirty days from the date of reserving the child.

(10) The prospective adoptive parents shall raise their grievance to District Child Protection Unit regarding the matching of the child, if any.

(11) While accepting the child, the prospective adoptive parents shall sign the Child Study Report and Medical Examination Report which may be downloaded from the Designated Portal, in the presence of the social worker or chief functionary of the Specialised Adoption Agency and the Specialised Adoption Agency shall record the acceptance by the prospective adoptive parents on the Designated Portal.

(12) In case the prospective adoptive parents are not selected for the child by the Adoption Committee, the reason for non-selection of the prospective adoptive parents shall be recorded on the Designated Portal. 

(13) If grounds of rejection after the enquiry are found to be due to systemic error or on non-justiciable reasons, seniority of the prospective adoptive parents shall be retained.

(14) In case the prospective adoptive parents do not accept the reserved child, the prospective adoptive parents shall be relegated to the bottom of the seniority list, as on that date, who may avail a fresh chance when the seniority becomes due and the same procedure shall be followed in the subsequent chances. 

(15) In all cases referred the reasons for not considering the prospective adoptive parents have to be clearly stated on the Designated Portal. 

(16) The registration of prospective adoptive parents shall continue till the time they have not exceeded the maximum composite age, i.e. fifty five years for single and one hundred ten years for couple and subject to revalidation of the Home Study Report in every three years. 

(17) The prospective adoptive parents may also get the Medical Examination Report of the child reviewed by a medical practitioner of their choice before giving their acceptance for adoption of the child.

C. Pre-adoption foster care.― 

(1) The child shall be taken in pre-adoption foster care by the prospective adoptive parents within ten days from the date of matching, after signing the pre-adoption foster care undertaking in the format.

D. The prospective adoptive parents shall provide original documents or notarised or self-attested copy of the original documents to the Specialised Adoption Agency.

E. Adoption Order.― 

(1) The Specialised Adoption Agency shall file an application with the District Magistrate of the district through District Child Protection Unit where the child is located, along with relevant documents as provided in the Schedule IX within ten days from the date of matching of the child with the prospective adoptive parents.

(2) The Specialised Adoption Agency shall file an application in the office of the District Magistrate through District Child Protection Unit.

(3) In case the child is from a Child Care Institution, which is not a Specialised Adoption Agency and is located in another district, the Specialised Adoption Agency shall file the application in the office of the District Magistrate in the district through District Child Protection Unit where the child is located and in such a case, the Child Care Institution shall be a co-applicant along with the Specialised Adoption Agency and the Child Care Institution shall render necessary assistance to the Specialised Adoption Agency concerned.

(4) In case of siblings or twins, the Specialised Adoption Agency shall file single application with the District Magistrate through District Child Protection Unit

(5) The Specialised Adoption Agency shall not make any opposite party or respondent in the adoption application since an adoption case is non-adversarial in nature.

(6) The District Magistrate shall hold the adoption proceeding in-camera and dispose of the case as early as possible, not exceeding two months from the date of filing of the adoption application by the Specialised Adoption Agency.

(7) The adoptive parents shall not be asked in the adoption order to execute any bond or make investment in the name of the child, considering the fact that their psycho-social profile and financial status have already been ascertained from the Home Study Report and other supporting documents.

(8) The Specialised Adoption Agency shall obtain a certified copy of the adoption order from the District Magistrate through the District Child Protection Unit and forward it to the prospective adoptive parents within ten days via e-mail and shall also upload it on the Designated Portal https://carings.nic.in/Parents which could be downloaded by the prospective adoptive parents.

(9) The Specialised Adoption Agency shall apply to the birth certificate issuing Authority for obtaining the birth certificate of the child within five days from the date of issuance of adoption order, with the name of adoptive parents as parents, and date of birth as recorded in the adoption order and the same shall be issued by the issuing Authority within five days from the date of receipt of the application.

(10) The Specialised Adoption Agency shall submit an affidavit to the District Magistrate while filing the application. In case the recognition of Specialised Adoption Agency has not been renewed or not likely to be renewed soon, then the District Child Protection Unit concerned shall directly file the application before the District Magistrate after completing its scrutiny.

F. Follow-up of progress of adopted child.― 

(1) The Specialised Adoption Agency which has prepared the Home Study Report, shall prepare the post-adoption follow-up report on six monthly basis for two years from the date of pre-adoption foster placement with the adoptive parents, in the format as provided in the Schedule XII and upload the same on the Designated Portal along with photographs of the child within ten days from the conduction of such report.

(2) In case the adoptive parents relocate, they shall inform the agency which has conducted their home study and the District Child Protection Unit of the district where they relocate.

(3) The District Child Protection Unit of the district of the current residence of the prospective adoptive parents shall prepare the post-adoption follow-up report and upload the same on the Designated Portal within ten days from the conduction of such report: Provided that first follow-up report of the adopted child shall be done within three months from the date of pre-adoption foster care.

(4) In case of non-adjustment of both the child and the adoptive family with each other, the Specialised Adoption Agency or the District Child Protection Unit shall arrange the required counselling for such adoptive parents and adoptees or link them to the counselling services available within the district or state within seven days with due intimation to the State Adoption Resource Agency and the District Magistrate: Provided that in case of non-compliance for three consecutive post adoption follow-ups the District Child Protection Unit shall prepare the social investigation report and inform the Child Welfare Committee for further action as may deem fit.

G. Procedure of disruption- In case of disruption in in-country adoption.―

(a) at the stage of pre-adoption foster care before filing an adoption application, the child shall be taken back to the Specialised Adoption Agency with information to District Child Protection Unit and State Adoption Resource Agency;

(b) at the stage of pre-adoption foster-care after the application has been filed with the District Magistrate through District Child Protection Unit, the child shall be taken back by the

(c) Specialised Adoption Agency and adoption application shall be withdrawn with prior permission from the Child Welfare Committee with intimation to the District Child. Protection Unit and the State Adoption Resource Agency and the status of the child on the Designated Portal shall be updated by the Specialised Adoption Agency accordingly;

(d) where the child has been taken to another state during the adoption process, the relocation of the child shall be coordinated by the State Adoption Resource Agency in the state where the child is currently residing and the State of origin.

H. Procedure for dissolution-In case of dissolution in in-country adoption.-

(a) In case of dissolution, the application for annulment of adoption order shall be filed by the Specialised Adoption Agency with the District Magistrate through District Child Protection Unit;

(b) No application should be filed until two counselling sessions have been completed by the local Specialised Adoption Agency or District Child Protection Unit before making any decision concerning disruption or dissolution;

(c) Post dissolution order, the child shall become legally free for adoption;

(d) The Specialised Adoption Agency or the District Child Protection Unit shall update the child’s status as legally free for adoption on the Designated Portal within three days.

I. Where the Indian adoptive parents move with the child abroad, within two years from the date of pre-adoption foster care, the concerned Indian Diplomatic Mission in the country of arrival in case of Non-Hague countries and Authorised Foreign Adoption Agencies or Central Authorities in Hague countries, shall be intimated at least fifteen days in advance through a written communication for the purpose of remaining follow up reports by the adoptive parents with their full contact details at the new place.

J. The onus of getting the balance post-adoption follow-up is with the adoptive parents and they have to bear the professional charges on their own, and further the adoptive parents shall give an undertaking to the Authority to that effect.

Documents required for Adoption

• Current family photograph/ photograph of person adopting a child
  
  
• Aadhar Card or Passport or Voter card or Driving License of the prospective adoptive parents or Birth Certificate or Overseas Citizen of India card of the prospective adoptive parents (if applicable) and PAN Card (if applicable).
  
  
• Proof of residence (Aadhar card/ voter card/ passport/current electricity bill/telephone bill)
  
  
• Proof of income of last year (salary slip/income certificate issued by Govt. department/income tax return)
  
  
• Certificate from a medical practitioner certifying that the prospective adoptive parents do not suffer from any chronic, contagious or fatal disease and they are fit to adopt (In the event of a married couple, upload the applicant’s respective medical certificate)
  
  
• Marriage certificate/Divorce Decree/Declaration from the competent court or affidavit on oath pertaining to divorce in case of divorce governed by personal law where decree of divorce is not mandatory/Death certificate of spouse whichever is applicable.
  
  
• Undertaking from the relative in case single prospective adoption parents (if applicable).
  
  
• Consent of the older child/children in the adoptive family.
  
  
  source: carings.nic.in

Registered Will

Registered Will: can it be legally challenged in the court?

The concept of Will has its deep-rooted origin for a very long time in India; its importance grows with the sense of transferring family wealth and business from one generation to another with ease.

A Will is a declaration by way of an established instrument wherein a person disposes of their property which shall take effect after their death and which to its primary nature is ambulatory and revocable during that person’s life. The Will was mainly recognised because of its ambulatory characteristics as it was a distinguishable feature of the disposition from the normal deed. According to the statute, a will is the aggregate of man’s testamentary intention so far as their manifested duly executed.

A will is a written document wherein a person states the procedure of devolution of his/her property and manifest his/her desire as to what and how a lifetime worth of assets will be dealt with after his/her death. A person who creates the Will is known as the ‘Testator’, and the person for whom the Will is executed is known as the “executor”, and the property disposed of in the Will is known as the subject matter of the Will.

In India, as the registration of the Will is concerned, the Indian Registration Act, 1908 deals with the provision that has to be complied with, and as per the provision of the Indian Registration Act, 1908, there exists no provision for making the registration of the Will compulsory , because  if the Act makes such document to be registered compulsorily that will attract some adverse consequences in many aspects of its practice in India. The registration of the Will in India is optional and at the peril of the parties creating a Will. The contrary opinions have been formed on the matter of registration of Will. It is always advisable by the legislature that a Will if made, should be registered. The Will has not necessarily been too registered by the testator or the creator of the Will, but any person who is an executor of the Will can write the Will after the testator's death. A Will can be kept with any person by himself (testator) or by any executor with the registrar wherein the Will was registered; the Will of the person can be deposited in the seal covered with the testator's name attached with the statement of nature of the document.

There are several legal considerations to creating a Will. The registered Will is a registered document/deed that can be challenged in the court of law for many reasons mentioned in this article below.

Reasons pursuing to which a registered Will can be challenged in the court of law:

1.     Fraud

A document made by any person that obliges any other person to work in part or in full for consideration or without any consideration will not be allowed to sustain. Such document will not be attributed any validity or legality in the eye of law. A registered document is though earned, a presumption that it is free from any malice or by any way illegal; according to the same understanding, it is interrelated that the registered Will is free from any fraud. The person who challenges the Will in the court of law on the reason that it was created by fraud the burden is upon him to prove the fraud in the registered document or registered Will.

2.     Coercion

Any person committing an act of violence against any such person from whom any obligations have to be fulfilled or any task has to be compelling without the consent of his/her is known as coercion. An act of coercion is illegal in the eyes of the law. If the reregistered Will is created by an act of coercion, it will be deemed unlawful, but such a person claiming the Will to be illegal has to prove that the Will is unlawful in this context.

3.     Undue Influence

Undue influence is to use the influence by way of position of power or for any reason of emotional connection wherein the decision is taken is not based on sound mind or informed reason. Such a factor plays a major role in deciding whether any document registered under such influence has any morality or, for that purpose, any legality. The registered Will for any purpose, if made by the undue influence of any family member or by any member of the testator, can be challenged in the court of law if proven by the substantial evidence on this behalf.

4.     Wills having suspicious nature

Various aspects prove the legality of the Will in the court of law, whereas the nature of Will also falls prey to being challenged if the Will is not created in complete accordance with these aspects. Following are various aspects if found, or deficient such Will could be challenged in the court of law:

a.     When any person creates a Will wherein any of the content(s) of the Will is vague or has no meaning as to substance, then such Will can be challenged, whereas if there exist two Wills wherein one is vague and other supplements other at the same time then such Will can be challenged, and such objection will be allowed by law.

b.     There exists a fault with regards to the stamp required by the Testator for registration of Will, and if such Will is not duly stamped but still registered, it can be challenged.

c.      If the thumb impression is required on the Will or not duly made or if there are more thumbprints though required by the law, such impression creates confusion among the signatories on the Will, such confusion on a Will can also be challenged in the court of law.

d.     If by the creation of Will there exists a disposition of property or devolution of any rights in the property but such disposition or devolution is made in favour of any person who is not remotely connected or there exists no connection to substantiate Will’s validity, then such Will can be challenged in the court of law.

e.    The Will has been executed at any place, but while registration, the date, time, and place has to be mentioned on the Will, but if at all the site of the execution on the Will is not mentioned, then such Will can be challenged in the court of law. E.g., If a person has executed a Will in a hospital, but the executor or any person concerned failed to mention this on a Will, then there can be a question raised on the validity of the Will in the court of law.

5.     Error in executing the Will

As any person who wishes to execute a Will, he has to perform some functions in creating Will and then some legal compliance to validate the Will and create a Will that has the support of law and is recognised in the eye of law. If there are errors in the execution of the “Will”, then such a Will can be challenged in the court of law.

6.     Error in the substance of Intention

As discussed above, the Will can now be fairly understood as the Testator’s demand/desire/order for dealing with his property after death. Any person while making a Will maintains a clear and transparent content as to the wish of the Testator, but such intention of the testator should be made clear, and the content of the Will should be concise and unambiguous, but if by any interpretation of the Will there seems so that the provision of any clause in the Will seems ambiguous or contrary to the intention of the testator then such clause or any Will to that extent can be challenged in the court of law.

7.     Incapacitate for Testamentary

There are certain pre-conditions required by any person who creates the Will that is mandatory for him/her to comply, without which anything done in such process of creation will be termed as null and void.

Following are certain conditions for creating a Will:

a. A person should be in the clear conscious to understand the terms and content of the Will and its effect with regards to the execution.

b. A person should be told, or he/she should understand the extent of his/her property he/she wishes to dispose of or his/her rights he/she wishes to devolve to someone.

c. A person willing to create a Will shall be able to comprehend and appreciate the claims to which he/she ought to give effect in terms of execution.

d. A person should be sound, and every decision taken by him/her should be in clear mind to its application when it’s brought in effect as to substance.

e. No person should be allowed to make a decision or create a Will at the time of any phase of paralysis of sound thinking or informed decision making.

f. If a person has a situation of mental disorder in intervals, a Will can only be created when the person is of sound mind.

g. A person should comply with all the requirements of section 10 of the Indian Contract Act, 1872 for a valid establishment of Will.

Conclusion

A Will is a very important aspect of a person’s life as it decides who will inherit all the hard-earned money once the person is dead. Therefore, in a country like India, it becomes very important that if a person finds a Will formed to be unsatisfactory, then he/she has the right to challenge the registered Will in the court to make sure there is no misconduct happening. The registered Will can be challenged for all the reasons mentioned above, and the procedure to be followed has been discussed in the article.

 - Adv. Anita Adsul

Anticipatory Bail

ABA- (Anticipatory Bail Application)

Directions for grant of bail to person apprehending arrest (Section 438)

1. When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

2. When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including--

i. a condition that the person shall make himself available for interrogation by a police officer as and when required;

ii. a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

iii. a condition that the person shall not leave India without the previous permission of the Court;

iv. such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

STATE AMENDMENTS - West Bengal:

To sub-section (1) of section 438 of the principal Act, the following proviso shall be added:---

"Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven day’s notice to present its case.

[Vide West Bengal Act 47 of 1981, s. 3.]

West Bengal.--

For sub-section (1) of section 438, of the principal Act the following sub-sections shall be substituted, namely:-- (1)...

a. When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail: Provided that the mere fact that a person has applied to the High Court or the Court of Session for a direction under this section shall not, in the absence of any order by that Court, be a bar to the apprehension of such person, or the detention of such person in custody, by an officer-in-charge of a police station.

b. The High Court or the Court of Session, as the case may be, shall dispose of an application for a direction under this sub-section within thirty days of the date of such application: Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven days notice to present its case.

c. If any person is arrested and detained in custody by an officer-in-charge of a police station before the disposal of the application of such person for a direction under this sub-section, the release of such person on bail by a Court having jurisdiction, pending such disposal, shall be subject to the provisions of section 437.

(1A) The provisions of sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgment, decree or order of any Court, tribunal or other authority.".

[Vide West Bengal Act 25 of 1990, s. 3.]

STATE AMENDMENT – Orissa:

Amendment of section 438.--In section 438 of the Code of Criminal Procedure, 1973 (2 of 1974), to sub-section (1), the following proviso shall be added, namely:-

"Provided that where the apprehended accusation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State notice to present its case.":

[Vide Orissa Act 11 of 1988, s. 2]

STATE AMENDMENT – Maharashtra:

Substitution of section 438 of Act 2 of 1974.--For section 438 of the Code of Criminal Procedure, 1973 (2 of 1974), in its application to the State of Maharashtra, the following section shall be substituted, namely: 438. Direction for giant of bail to person apprehending arrest.—

1. When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail; and High Court may, after taking into consideration, inter alia, the following factors:--

i. the nature and gravity or seriousness of the accusation as apprehended by the applicant;

ii. the antecedents of the applicant including the fact as to whether he has, on conviction by a Court previously undergone imprisonment for a term in respect of any cognizable offence;

iii. the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested, and

iv. The possibility of the applicant, if granted anticipatory bail, fleeing from justice, either reject the application forth with or issue an interim order for the grant of anticipatory bail: Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

2. Where the High Court or, as the case may be, the Court of Session, considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1), the Court shall indicate therein the date, on which the application for grant of, anticipatory bail shall be finally heard for passing on order thereon, as the Court may deem fit; and if the Court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely:--

i. that the applicant shall make himself available for interrogation by a police officer as and when required;

ii. that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation against him so as to dissuade him from disclosing such facts to the Court or to any police officer;

iii. that the applicant shall not leave India without the previous permission of the Court; and

iv. such other conditions as may be imposed under sub-section (3) of section 437 as if the bail was granted under that section.

3. Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice, being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Commissioner of Police, or as the case may be, the concerned Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

4. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

5. On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order made under sub-section (1).]

[Vide Maharashtra Act 24 of 1993, s. 2]

STATE AMENDMENT – Uttar Pradesh:

Section 438 of the said Code shall be omitted. [Vide Uttar Pradesh Act 16 of 1976, s. 9]

Section 439.   Special powers of High Court or Court of Session regarding bail.

1. A High Court or Court of Session may direct,--

a. that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

b. that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

2. A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

STATE AMENDMENT – Assam:

439-A. Power to grant bail.--(1) Notwithstanding anything contained in this Code, no person—

a. who, being accused or suspected of committing an offence under any of the following Sections, namely, ---Sections 120B, 121, 121A, 122, 123, 124A, 153A, 302, 303, 304, 307, 326, 333, 363, 364, 365, 367, 368, 392, 394, 395, 396, 399, 412, 431, 436, 449 and 450 of the Indian Penal Code, 1860, Sections 3, 4, 5 and 6 of the Indian Explosive Substances Act, 1908, and Sections 25,26, 27, 28, 29, 30 and 31 of the Arms Act, 1959, is arrested or appears or is brought before a court; or

b. who, having any reason to believe that he may be arrested on an accusation of committing an offence as specified in clause (a), has applied to the High Court or the Court of Sessions for a direction for his release on bail in the event of his arrest, shall be released on bail or as the case may be, directed to be released on bail, except on one or more of the following grounds, namely: --

i. that the Court including the High Court or the Court of Session for reasons to be recorded in writing is satisfied that there are reasonable grounds for believing that such person is not guilty of any offence specified in clause (a);

ii. that such person is under the age of sixteen years or a woman or a sick or an infirm person;

iii. that the court including the High Court or the Court of Sessions for reasons to be recorded in writing is satisfied that there are exceptional and sufficient grounds to release or direct the release of the accused on bail."

[Vide Assam Act 3 of 1984, s. 5.]

Section 440.   Amount of bond and reduction thereof. 

1. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.

The High Court or the Court of Session may direct that the bail required by a police officer or Magistrate be reduced.

Who cannot be Witness?

Statement by persons who cannot be called witnesses: 

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. –– Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: ––

(1) When it relates to cause of death. –– When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) or is made in course of business. –– When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

(3) or against interest of maker.–– When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.

(4) or gives opinion as to public right or custom, or matters of general interest. –– When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

(5) or relates to existence of relationship.–– When the statement relates to the existence of any relationship 1[by blood, marriage or adoption] between persons as to whose relationship 1[by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

(6) or is made in will or deed relating to family affairs.–– When the statement relates to the existence of any relationship 1[by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

(7) or in document relating to transaction mentioned in section 13, clause (a). –– When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).

(8) or is made by several persons and expresses feelings relevant to matter in question. –– When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Illustrations

(a) The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished. The question is whether she was ravished by B; or

The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.

Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A’s birth.

An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Calcutta on a given day.

A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Bombay harbour on a given day.

A letter written by a deceased member of a merchant’s firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land.

A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders is a relevant fact.

(f) The question is, whether A and B were legally married.

The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.

(h) The question is, what was the cause of the wreck of a ship.

A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

(i)   The question is, whether a given road is a public way.

(j)   A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(k) The question is, what was the price of grain on a certain day in a particular market.

A statement of the price, made by a deceased bunya in the ordinary course of his business, is a relevant fact.

The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact.

(l)    The question is, what was the date of the birth of A.

A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married.

An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved.

33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. –– Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided ––

that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation. –– A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Source: Indian Evidence Act