Hindu Women Coparceners by Birth
Originally, under Hindu Succession Act, 1956, Women were not recognised as coparceners. The Hindu Succession (Amendment) Act, 2005 brought true gender equality by elevating Hindu daughters as coparceners by birth at par with sons of the coparceners.
According to the true tenets of Hindu Law, coparcener is a person who acquires a share in ancestral property by birth, coupled with a right to demand partition in the joint family property.
Till the advent of the Amendment Act, 2005 it was only the sons and paternal grandsons who were considered as coparceners in complete exclusion of daughters and their descendents.
In February, 2018, the Hon’ble Supreme Court clearly held that Hindu daughters born even prior to the Hindu Succession Act, 1956 are also coparceners of a Hindu Joint Family and hence entitled to equal share in ancestral property as that of the Sons.
There is a plethora of judgments of the Supreme Court and various High Courts as to the interpretations and implementations of the Amendment Act, 2005.
As per the Hindu Succession (Amendment) Act, 2005, the current position of the law is as follows:
- By birth a daughter becomes coparcener.
- She is entitled to the same rights in ancestral property as that of a son.
- She has the same liabilities in respect of ancestral properties as that of a son.
- This Act is applicable to every woman governed by the Hindu Succession Act, 1956 for the purpose of inheritance and succession.
- Applicable even to daughters who were born prior to 17th June, 1956 and who were alive on 9th September, 2005.
- This Act is not applicable to any property which had been partitioned or dispositioned by way of will prior to 20th December, 2004.
- Partition herein means and includes only the partition executed by a Partition Deed duly registered under the Indian Registraion Act, 1908 or a partition effected by decree of a court.
Nomination of Bank Deposits & Insurance Policies
Banks, financial institutions and insurance companies are keen to obtain nomination for money deposits, safety lockers and insurance policies. It is advisable for depositors, policyholders and nominees to be aware of their legal rights and obligations.
Bank Deposits & Safety Lockers:
As a general rule, a nominee is designated to receive the assets of the deceased depositor from the bank. He/she is under a legal obligation to distribute the assets among the legal heirs of the deceased as per the relevant law of succession. If the deceased has left a will, the nominee has to distribute the assets in accordance with the will.
Only one individual, who may or may not be a legal heir, can be designated as the nominee for each investment in order to ensure hassle-free settlement of the deceased investor’s assets. Once the assets are handed over to the nominee of the deceased, the responsibility of the financial institutions ends.
Even a minor can be designated as the nominee, in which case the minor’s lawful guardian will execute the obligations of the nominee.
If there is no nominee, the bank authorities are obliged to release the assets of the deceased in favour of the legal heirs subject to the norms and policies of the bank. In certain cases, they may insist on legal heirs obtaining a succession certificate from the jurisdictional civil court to get the assets of the deceased.
Nomination of Insurance Policies:
The same rules for nomination were applicable to life insurance policies till the enactment of the Insurance Laws (Amendment) Act, 2015.
In that Amendment Act, the concept of beneficial nominee was introduced. Under the present Act:
- More than one individual can be designated as nominee.
- Other than nominee/s, no one else has any right over the insurance proceeds of the deceased life assured.
- Similar to a will, nomination also defines the beneficiaries.
- This is applicable to policies maturing after 26th December, 2014.
- However, it is not applicable to policies purchased under the Married Women Property Act.
WELFARE Of THE CHILD PARAMOUNT
In a notable child custody case, the Hon’ble Supreme Court has observed that the real victims of matrimonial litigation are not the litigating couples, but their children.
When wellbeing of the child is challenged by the litigating parents and custody issues erupt, courts of law play a major role in ensuring the welfare of the child. So far, certain legal and practical impediments were preventing the courts from achieving the ultimate goal.
Welfare of the child not only means and includes economic and physical wellbeing, but also the moral, social and ethical wellbeing of the child.
Being a secular nation, our Personal Laws have significance in child custody litigation. Hindu Law and Muslim Law have prescribed certain parameters to decide custody. Christian Law has left it to the courts to decide what is best, while Parsi Law prescribes only the time limit to the courts for passing orders regarding child custody. How far the legal rights of parents as per their own Personal Laws are guaranteeing the welfare of the child is a sensitive issue.
Whenever NRI couples face matrimonial wrangles, clash of orders of Indian courts and foreign courts with regard to child custody creates issues. The principle of Comity of Courts is normally applied and the parent who is able to get the custody order first, obtains custody of the minor, though many times this ignores the welfare of the child.
On 6th December 2017, the Hon’ble Supreme Court clearly laid down that the welfare of the child is the paramount consideration, and not the legal rights of the parties nor the legal principles.
This welcome verdict of true parens patriae jurisdiction in Prateek Gupta Vs Shilpi Gupta has warded off many complications as to the custody of minor children, viz.:
- Rigours of Personal Laws of respective minors
- Principle of Comity of Courts and
- Gender of the parent and minor to decide the custody.
ELECTRONIC BANK FRAUDS & CUSTOMER LIABILITY
The Reserve Bank of India has reported 16,468 cyber crimes in 2015-16. During 2014-15, the number was 13,083 and in 2013-14, it was 9,500. Mushrooming electronic bank frauds are a cause of concern for every bank customer. A recent notification of the RBI has brought solace by limiting the liability of customers.
- Contributory negligence or deficiency on the part of the bank even if the customer does not report.
- Fraud by third party and customer notifies the bank within three working days of receiving communication reflecting unauthorised transaction.
- Customer shares his bank credentials with any unauthorised person. He has to bear the losses till he reports to the Bank.
- Any unauthorised transactions after the customer reports will be borne by the bank upto `5,000 or `10,000 or `25,000 according to the respective case, if the customer reports between four to seven days. If the Customer reports after seven days, the liability of bank shall be determined according to the approved policy of the respective bank which has to be mandatorily explained to both existing and new customers.
- When the complaint is resolved and liability is determined within 90 days, the customer will be compensated as per the Liability Clause.
- If the complaint is not resolved within 90 days, the customer will be compensated as per the Liability Clause on a flat rate basis.
- In the case of debit cards or bank accounts, the customer should not suffer any loss of interest.
- In the case of credit cards, the customer shall not bear any additional interest.
- Ensure safety and security of electronic banking transactions and
- Continuously educate customers on protective measures including registering for SMS & email alerts.
Child Care & Protection
Child safety is snowballing into a major issue, unrelated to the socio-economic background of the child. A recent joint report by the Ministry of Family & Child Welfare and UNICEF says 53 % of the children surveyed are suffering sexual abuse at institutions or by their own kith and kin.
The prevailing child welfare legislation and the Integrated Child Protection Scheme are not being implemented properly for the welfare of abused children. Unless today’s children are duly cared for and protected, in future India will be burdened with a large number of offenders and persons with mental illness.
On 5th May, 2017, Re Exploitation of Children in Orphanages in the State of Tamil Nadu Vs. Union of India, the Supreme Court issued guidelines to all State Governments and Union Territories and directed that the term ‘Child in need of care & protection’ must be given a broad and purposeful meaning to care for and protect every abused child.As per the guidelines, on or before the 31st December, 2017:
- All child care institutions must be registered.
- Child care institutions have to maintain at least the minimum standard of care as per the Juvenile Justice Act, 2015 and the Model Rules.
- Appropriate plans must be drawn up by State Governments & Union Territories to utilise Central Govt grants for child welfare and inspection committees set up to monitor the same.
- A Child Rehabilitation Programme and individual Child Care Plans must be ready.
- All vacancies in State Commissions for Protection of Children must be filled.
- Training all Child Care personnel as per the Juvenile Justice Act & the Model Rules at state level and national level.
- De-institutionalisation of children by way of adoption and foster care.
- Periodic social audit of child care institutions by the National and respective State Commissions.
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