The Bharatiya Nyaya Sanhita, 2023 (BNS): The modern Incarnation of IPC -Understanding the Major changes 

The Bharatiya Nyaya Sanhita, 2023 (BNS): The modern Incarnation of IPC -Understanding the Major changes 

By SangsLegal

19th January 2023

The Bharatiya Nyaya Sanhita, 2023 (BNS) was promulgated on December 25, 2023, serving as the country's renewed penal code by superseding the Indian Penal Code, 1860 (IPC).The Bharatiya Nyaya Sanhita will consist of 358 sections, which is a reduction from the 511 sections in the IPC. This includes the addition of 20 new crimes, while the imprisonment sentence has been elevated for 33 offenses. Furthermore, the fine amount has been raised in 83 crimes, and mandatory minimum punishment has been established for 23 crimes. Additionally, community service is now an option as a penalty for six offenses. Lastly, 19 sections have been repealed or eliminated from the legislation. Key changes in the BNS include:

a   a)    Incorporation of community service as a form of punishment

           b)  Offences against the body

      c) Sexual offences against women

             d ) New provision of Treason

           e) Overlap with Unlawful Activities (Prevention) Act, 1967

f     f )  Terrorism

             g)  Organised crime

              h) Mob lynching

i      i)   Deletion of certain offence

I

  I            I.  Definitions

i.                   Section 2(3) of BNS “Child” New Definition

The newly introduced provision [NEW] outlined in Section 2(3) of BNS establishes the definition of 'child' to encompass individuals who are below 18 years of age.

ii.                 Section 2(8) of BNS/Section 29 of IPC “Document”

Section 2(8) of BNS provides that documents include ‘electronics and digital record’.

iii.              Section 2(10) of BNS/Section 8 of IPC “Gender”

The specific provision in section 2(10) explicitly includes transgender individuals and offers a clear definition, which contrasts the previous scenario in section 8 of IPC.

iv.              Section 2(21) of BNS “movable property”

The scope of "movable property" under Section 2(21) of BNS differs from the definition stated in Section 22 of IPC. In contrast to Section 22, Section 2(21) of BNS does not solely encompass property in corporeal form. This means that movable property, as defined in BNS, includes property of any kind, whether tangible or intangible, except for immovable property. It encompasses both physical assets and intangible assets such as patents, copyrights, and actionable claims.

II.                Section 21 Offence committed by a child

 Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

III.             Section 22 and 23  Mental illness and intoxication

Any act committed by an individual suffering from mental illness, who, at the time of the act, is unable to comprehend its nature, or that it is morally or legally incorrect, shall not be considered an offense.

Likewise, any act performed by an intoxicated individual, who, due to the intoxication, is incapable of understanding the nature of the act or its moral and legal implications, shall not be deemed as an offense; except in cases where the substance causing the intoxication was administered to the person without their knowledge or consent.

IV.            Section 69 sexual offenses against women and children by deceitful means

It states, "Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."

V.               Section 70(2) Gang Rape of a woman under eighteen years of age

Gang rape of a woman under eighteen years of age carrying a punishment of imprisonment for life, i.e., imprisonment for the remainder of that person's natural life, and with fine, or death.

VI.            Community Service has been included in BNS as a punishment for the first time for petty offences

The inclusion of Community Service as a form of punishment for minor offenses is a new development in BNS. Previously, Section 53 of IPC outlined five types of punishments, namely Death, Life Imprisonment, Rigorous Imprisonment, Simple Imprisonment, Forfeiture of Property, and Fine. However, Section 4(f) of BNS has introduced a sixth type of punishment known as Community Service.

Petty offenses include failing to appear in response to a proclamation, attempting suicide, preventing or restricting the exercise of a public servant's lawful authority, petty theft on return of theft money, intoxicated public misbehavior, defamation, etc. BNS prescribes community service as punishment for these types of offenses.

In BNS, the definition of "community service" is not explicitly provided. But the Explanation to section 23 of BNSS sheds light on its meaning. According to this, community service refers to the mandatory work assigned by the Court to a convict as a disciplinary measure. This form of punishment aims to benefit the community, and the individual performing community service shall not receive any form of remuneration.

Offenses that qualify for community service as a penalty

BNS allows for the following offenses to result in community service as a penalty:

Section 202  : Public servant engaging in unlawful trading

Section 209 : failing to appear in response to a proclamation made according to Bharatiya Nagarik Suraksha Sanhita 2023 section 84.

Section 226 : attempting suicide

Proviso below section 303(2) : For the first time, a person found guilty of theft in which the value of the theft property is less than five thousand rupees faces community service once the property is returned or restored.

 Section 355 : Intoxicated public misbehavior

Section 356 : Defamation

IV. Section 103(2) Punishment for mob-lynching (new provision)

The new Section 103(2) of BNS stipulates that if five or more people act together to commit murder on the basis of race, caste, community, sex, place of birth, language, personal belief, or any other reason, each member of the group will be punished with either death or life in prison, as well as a fine.

V.         Section 111(1) Definition “Organised Crime”

A new provision has been introduced to address the issue of organized crime, as it was not previously recognized as an offense under the Indian Penal Code (IPC). In the past, individual states, like Maharashtra, had their own laws, such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), to define and punish organized crime. However, the enactment of Section 111 in the BNS now offers a specific provision to tackle organized crime at a national level.The following are considered as “Organised crime”

i.                   Any continuing unlawful activity falls under this category, which includes kidnapping, robbery, car theft, extortion, land grabbing, contract killing, economic crimes, cybercrimes, trafficking in people, drugs, weapons, or illicit goods or services, as well as trafficking in people for the purpose of prostitution or ransom.

ii.                 Activity conducted by individuals or a group associated with an organized crime syndicate: This particular activity is performed by individuals acting independently or collectively, either as members of an organized crime syndicate or on their behalf.

iii.              Unlawful methods: This form of activity entails utilizing violence, threats, intimidation, coercion, or any other illegal means.

iv.              Objective is to gain advantage: This activity is conducted with the purpose of acquiring a direct or indirect, tangible advantage, which may include financial benefits.

  A.  Clause (iii) of Explanation below Section 111(1) Definition of “Economic offence”

The term "economic offences" encompasses various unlawful activities aimed at obtaining financial gains through different means, such as:

i)                   Engaging in criminal breach of trust

ii)                Committing forgery

iii)              Counterfeiting currency notes, banknotes, and government stamps

iv)              Participating in hawala transactions

v)                Engaging in mass-marketing fraud

vi)              Organizing schemes to defraud multiple individuals

vii)           Carrying out acts with the intention to defraud banks, financial institutions, or other establishments.

B . Clause (i) of Explanation below Section 111(1) Definition of “Organised crime syndicate

 A definition of "organised crime syndicate" refers to a collective of three or more individuals who engage in ongoing unlawful activities, either independently or collaboratively as a syndicate or gang.

Punishment for committing organized crime

 a.  In the event that an individual engages in organized criminal activities, such activities have caused the loss of life, the offender shall be subject to either capital punishment or lifelong imprisonment, in addition to a fine of no less than ten lakh rupees.

b. Section 111(2) -In any other scenario, the individual shall face imprisonment for a minimum of five years, and the maximum sentence may include lifetime imprisonment. Additionally, a fine not less than five lakh rupees shall be imposed.

c. Section 111(3) outlines the punishment to individuals involved in aiding, attempting, or promoting organized crime, as well as engaging in behavior that supports the advancement of organized crime activities.

d. Section 111(4) establishes the penalties imposed upon individuals who are found to be affiliated with an organized crime syndicate.

e. Section 111(5) mandates the imposition of penalties for purposely harboring or concealing an individual who has committed the offense of engaging in organized criminal activities.

f. Section 111(6) prescribes the punishment for possessing any assets acquired or obtained from the perpetration of organized crime, including proceeds or property acquired through such illicit activities.

g. Section 111(7) stipulates the punishment for an individual who possesses any property on behalf of a member of an organized crime syndicate, without being able to provide a satisfactory explanation for it.

 VI. Section 112 Definition of New Offence of “Petty Organised Crime”

This is a new provision in BNS. There is no such provision in IPC.

Section 112 provides as under :

A person who is part of a group or gang, whether individually or collectively, is considered to engage in petty organized crime if they are involved in activities such as theft, snatching, cheating, unauthorized sale of tickets, unauthorized betting or gambling, selling of public examination question papers, or any other comparable criminal acts.

Punishment for petty organized crime

Whoever commits any petty organised crime shall be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine.

i.                    Snatching

According to the definition stated in section 304(1) of the BNS, the term "snatching" shall hold the same meaning. The BNS further clarifies in section 3(2) that any expression explained in any part of the document shall be interpreted consistently throughout. However, in the circumstance where the offender carrying out "snatching" (such as chain snatching or mobile snatching) is involved in a gang or group, the offense of snatching is subject to punishment under this section.

If an individual engages in criminal acts as a lone wolf, operating independently without any affiliation to a gang or group, they will be subject to punishment under section 304(2). It is important to note that Section 304 is a recent addition which addresses snatching as a distinct offense. However, it is worth noting that the punishment for such offenses under section 304(2) is comparatively less severe than that prescribed under section 112.

ii.                 Theft

The definition of the term "theft" is explicitly given in section 303(1) of BNS. Within this sub-section, "theft" encompasses various activities such as trick theft, theft from vehicles, dwelling houses, or business premises, cargo theft, pickpocketing, theft through card skimming, shoplifting, and theft of an Automated Teller Machine. However, it is important to note that terms like "trick theft", "card skimming", "shoplifting", "pickpocketing", etc., are not explicitly defined in BNS. Therefore, these terms should be interpreted according to their commonly accepted meanings..

If an individual involved in theft is associated with a gang or group, the offense falls under the purview of this section. However, if the theft is carried out by a lone individual, not part of  a gang or group, it is punishable under section 303(2) of BNS. It is important to note that the punishment prescribed under section 303(2) is comparatively lesser than that under section 112.

In addition, it should be noted that theft committed by a sole operator, as stated in section 303(2), is considered a compoundable offense under section 359 of the Bharatiya Nagarik Suraksha Sanhita,2023 (BNSS). On the other hand, if theft is committed by an individual who is part of a gang, it is classified as an offense under section 112 and is not compoundable.

iii.              Cheating

In light of section 3(2) of BNS, the definition of "cheating" stated in section 318(1) of BNS will also be applicable for section 112 purposes. Nevertheless, it is important to consider the following points:

-If the offender engaging in cheating is associated with a gang or group, this section allows for the punishment of the offense.

-On the other hand, if the offender operates alone, without any affiliation to a gang or group, the offense of cheating falls under section 318 and will be punishable accordingly.

VII. Section 113 Definition of New Offence of Terrorist Act 

Section 113 provides as under:

Whoever engages in any action with the intention to pose a threat or potentially jeopardize the unity, integrity, sovereignty, security, or economic security of India, or with the aim to instill terror or potentially instigate fear among the people or a specific population within India or any foreign nation;

 -By  causing or intending to cause harm, destruction, or danger, whether through the use of bombs, dynamite, or other explosive substances, inflammable substances, firearms, lethal weapons, poisonous or noxious gases, chemicals, or any other hazardous substance (including biological, radioactive, nuclear or any other similar material), or through any means that may potentially result in

 -a person's death or injury, or the occurrence of loss, damage, or destruction to property,

 - or the disruption of essential supplies or services within the Indian community or any foreign nation.

 -Furthermore, damage to the financial stability of India due to production, smuggling, or circulation of counterfeit Indian paper currency, coin, or any other material.

 -Also, any harm or destruction to property within India or a foreign country that is utilized or intended to be utilized for the defense of India or for any other purposes of the Indian Government, State Government, or any of their agencies.

 -Or intimidates by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

 -threatens to kill or harm someone while detaining, kidnaps, or abducts them, or takes any other action to force government of India, a state government, a foreign government, an international or intergovernmental organization, or any other individual to do or refrain from doing any act,

commit a terrorist act.

Punishment for commission of ‘terrorist act’

If a person commits a terrorist act and it results in the death of any individual, they will be subject to either a death penalty or life imprisonment, in addition to being liable for a fine. If the terrorist act does not result in any fatalities, the punishment will be imprisonment for a minimum of five years, which may extend to life imprisonment, along with a fine.

Punishment for conspiracy, attempt, advocacy, abetment, advice, incitement, or knowingly facilitate the commission of a terrorist act

Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for organising camp aimed at training terrorists or recruiting persons for committing terrorist acts

Whoever organises or causes to be organised any camp or camps for imparting training in terrorist act, or recruits or causes to be recruited any person or persons for commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for being a member of organisation involved in terrorist act

Any person who is a member of an organisation which is involved in terrorist act, shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.

 Harbouring or concealing a terrorist

Anyone who willingly harbours, conceals, or makes an attempt to harbour or conceal an individual, with the knowledge that said individual has committed a terrorist act, shall face imprisonment for a minimum of three years, and potentially lifelong imprisonment. Additionally, they will be subject to fine.

This sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender.

Punishment for possessing proceeds of terrorist acts

Anyone found to be in possession of any property derived or obtained from the execution of a terrorist act or acquired through the execution of a terrorist act will face imprisonment for a duration ranging up to a lifetime, in addition to being subject to a fine.

A police officer holding the rank of SP or higher is authorized to make the determination regarding whether an offense should be registered under the Unlawful Activities (Prevention) Act (UAPA) or under the applicable section mentioned.

VIII. Section 106-Changes in punishment in hit and run cases

Regarding death resulting from negligence, Indian Penal Code (IPC) covers it under Section 304A. Correspondingly, Section 106 of the BNS Act refers to Section 304A as well. According to Section 106(1) of the BNS Act, individuals who cause the death of a person due to rash or negligent acts, which do not constitute culpable homicide, may face imprisonment for a term of up to five years.

The new law increases the punishment for causing death by negligence from a maximum of two years to a maximum of five years. This change reflects a stricter approach to cases of negligence resulting in death.

Section 106(2) Offender escaping or failing to report (New Provision)

Section 106(2) of BNS encompasses an additional provision in sub-section (2) concerning instances where the perpetrator flees the scene of an incident without reporting it to a police officer or Magistrate. In such scenarios, a stringent punishment is enforced, encompassing a maximum imprisonment sentence of ten years along with a fine.

The application of section 106(2) punishments does not occur solely based on the driver fleeing the scene in order to avoid being attacked by angry bystanders. The offense is only committed if the driver not only flees the scene but also fails to promptly report the incident to the Police or Magistrate.

 IX. Negligent act of Medical practitioner [New Provision]

In case of registered medical practioner if negligent act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

X. Sedition (Section 124-A IPC) /Treason (Section 152 BNS)

BNS has omitted section 124A of IPC under which sedition was a punishable offence. Rather than being classified as another offense under BNS, treason falls under Section 152 of BNS, encompassing acts that jeopardize India's sovereignty, unity, and integrity.

Section 152-Treason, Act endangering sovereignty, unity and integrity of India

Section 152 of BNS provides that whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.

The clarification provided for section 152 of the BNS emphasizes that commenting on the government's actions or measures to seek their lawful alteration, without inciting or attempting to incite activities related to secession, armed rebellion, subversive activities, separatist sentiments, or jeopardizing the sovereignty, unity, and integrity of India, will not be considered an offense under this section.

 XI. Section 178- Mere possession of fake currency notes is no more punishable

Section 178 of the BNS has incorporated changes to Section 242 of the IPC to safeguard individuals from legal consequences solely based on possession of forged or counterfeit currency notes or bank-notes. As per the revised legislation, mere possession of counterfeit currency notes or bank-notes is no longer considered as an offense. The amended law, recorded as section 178 in the BNS, stipulates that in order to constitute an offence possession of counterfeit currency note has to be accompanied by the intention to use the same as genuine.

 XII. Section 224 of BNS “Suicide” Definition

While Section 309 IPC forbids attempts to commit suicide Section 224 BNS omitted the section and introduced new definition of  that it is illegal to attempt suicide in order to coerce or restrict the exercise of lawful authority.

XIII. Section 318 of BNS “Cheating”

In a recent change, the Indian Penal Code (IPC) has consolidated various forms of cheating into one provision called Section 318 of the BNS. This new provision increases the punishment for cheating to a maximum of three years of imprisonment, compared to the previous one-year sentence under the IPC. Moreover, for a more severe form of cheating that

involves knowledge of causing wrongful loss to someone whose interests the offender is obligated to protect, the punishment has been further increased to a maximum of five years of imprisonment.

XIV. Expanded definition of “theft” vis a vis IPC [Section 303(1) read with section 112(1) and section 2(21)

The offense of "theft" has been broadened to encompass the theft of intangible items, such as the theft of data (e.g., credit card skimming), identity theft, and the misappropriation of intangible assets. This expansion aligns with the extended definition of "movable property."Theft is covered by section 303 of BNS. Corresponding provisions were sections 378 and 379 of BNS

The scope of the term "movable property" in BNS is broader compared to its definition in IPC.

i.                   Section 2(21) of BNS has removed the phrase “are intended to include corporeal” that was previously present in the definition of movable property in section 22 of IPC. Consequently, movable property now encompasses all types of property except immovable property, regardless of whether it is in tangible or intangible form. This expanded definition under BNS includes assets such as patents, copyrights, and other intangible assets, as well as actionable claims.

ii.                  the definition of theft has been broadened to include data theft, encompassing the unauthorized access and manipulation of data, including the online theft of funds through hacking bank accounts. Additionally, the theft of intangible assets, data, card skimming, and online theft through hacking bank accounts or cloning mobile devices are all deemed as theft under this revised definition of movable property.

iii.              Based on section 3(2) of BNS, section 303 will encompass offenses falling under the definition of "theft" as set out in the inclusive explanation of section 112(1). In accordance with this explanation, the term "theft" not only refers to the act of stealing, but also includes various other offenses such as trick theft, theft from vehicles, dwelling houses or business premises, cargo theft, pick pocketing, theft through card skimming, shoplifting, and theft of Automated Teller Machines.

Section 303(2)] Prescribed punishment

Harsher punishment in the form of rigorous imprisonment

Under normal circumstances of theft, the period of imprisonment remains unchanged at 3 years under both the previous and current legislation. Nevertheless, if an individual commits theft again (second or subsequent conviction), the BNS enforces a stricter punishment in the form of rigorous imprisonment. The duration of this imprisonment will be a minimum of one year and can be extended up to five years, in addition to a fine.

First-time offenders involved in petty theft cases

As stated previously, for first-time offenders involved in petty theft cases where the value of stolen property is less than ₹5000, community service can be imposed as an alternative punishment instead of imprisonment or a fine, under the proviso to section 303(2) of BNS. This option is applicable if the offender either returns the value of the stolen property or restores the stolen property itself.

Theft by snatching

It is important to note that the punishment for theft, as stated in section 379 of IPC, is also applicable to theft by snatching. However, under the provisions of BNS, theft by snatching is considered a distinct offense falling under section 304 of BNS, which entails even stricter penalties.

Mandatory Summary trial of offences of petty theft

The monetary limits for petty thefts triable in summary trials in terms of value of stolen property involved has been increased from ₹2000 (section 260(1) of CrPC) to ₹20000 (section 283(1) of Bharatiya Nagarik Suraksha Sanhita (BNSS))

 Summary trials are rendered obligatory for petty and less serious cases

In compliance with Section 283 of BNSS, summary trials are rendered obligatory for petty and less serious cases. Contrastingly, according to Cr.PC, it was within the discretion of the Magistrate to opt for a summary trial for petty and less serious offenses as per Section 260(1) of Cr.PC, which employed the phrase "may, if he thinks fit, try in a summary way all or any of the following offenses." However, Section 283(1) of BNSS has replaced the term "may" with "shall" and has further enhanced the monetary limits for the summary trial of petty offenses.

The offence of theft when punishable u/s 112 and Section 303(2)

If an individual carries out theft alone, without any involvement of a gang or group, it will be deemed an offense and subject to prosecution under section 303 (2) .However, if the offender is part of a gang or group, engaged in the act of theft, it will be considered petty organized crime and punishable according to section 112.

 XV. Section304- Snatching (New offence)

Section 304 of the BNS introduces a novel provision. Previously, the IPC did not classify snatching as a separate offense from theft under section 379 of the IPC.

The term "snatching" refers to situations where an offender forcefully and swiftly seizes or takes away movable property from a person or their possession with the intent to commit theft.

Anyone found guilty of snatching will face imprisonment for a period of up to three years and may also be subjected to a fine.

When offence of snatching is punishable under this section and when punishable u/s 112

If an offender conducts snatching as an individual (solo and without any affiliation to a gang or group), this act will be subject to punishment as per this section.

However, if the offender, engaged in snatching activities such as chain snatching, mobile snatching, etc., is part of a gang or group, the offense of snatching will be punishable under section 112 as a minor form of organized

Deletion of certain offenses

i.                   The Section 377 of the IPC offense has been removed by the BNS in  line with the Supreme Court’s Judgement in Navtej Singh Johar Vs Union of India.

ii.                 The BNS likewise omits the offence of attempting suicide, which is defined by Section 309 of the IPC. This is a progressive omission that sees suicide attempts as mental health emergencies rather than criminal offenses.

iii.              Adultery is not listed as a crime in BNS in line with Supreme Court’s Judgement in Joseph Shine Vs Union of India

Conclusion

The Bharatiya Nyaya Sanhita 2023 represents a commendable effort to modernize the Indian Penal Code and align it with contemporary societal needs. The adoption of gender-neutral language, enhanced protection for women and children, and provisions to address economic offenses and cybercrime demonstrate the evolving priorities of the legal framework. However, successful implementation of the revised code necessitates comprehensive sensitization, awareness campaigns, and efficient justice delivery mechanisms. By addressing these key issues, India can ensure that the Bharatiya Nyaya Sanhita 2023 serves as a significant stepping stone towards a more just and equitable society.

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Exploring Recent Developments in Indian Succession Laws

Exploring Recent Developments in Indian Succession Laws

( An Insight into Inheritance of Property Rights under the Hindu Succession Act 1956 : Part II)

By SangsLegal.com

9th December 2023

Indian succession laws have undergone significant changes in recent years, aimed at providing a more rationalized and uniform approach to the distribution of assets after an individual's death. The recent changes to the Indian Succession Laws and the consequential case laws carry wide-ranging implications. They have reinforced the principles of equality, non-discrimination, and fairness in property inheritance, irrespective of gender. These developments have brought about a significant transformation in societal attitudes by challenging age-old customs that deprived women of their rightful share in the ancestral property.

I. New General Rules:

In an effort to simplify and modernize the succession process, the government introduced new general rules. The Hindu Succession (Amendment) Act, 2005 (39 of 2005) was enforced with the objective of eradicating gender-biased clauses present in the Hindu Succession Act, 1956. As per the amendment, a daughter of a coparcener is granted equal rights and becomes a coparcener from the moment of birth, just like a son.

A. The Hindu Succession (Amendment) Act, 2005:

Under this amendment, daughters now have coparcenary rights in the ancestral property of the Hindu Joint Family. They have the same legal entitlement as sons, even if the father passed away prior to 2005. This amendment rectified the gender bias prevalent in the original 1956 Act and contributed to empowering women by improving their economic and social standing within their families.

B. The Indian Succession Act, 1925:

The Indian Succession Act governs the distribution of assets in cases where a person dies without leaving a will. Recent developments have introduced provisions to simplify the process of intestate succession. This includes adopting a more inclusive definition of heirs, incorporating the rights of adopted children, and introducing provisions for non-resident Indians (NRIs) in order to address the complexities arising from global mobility.

II. Amendments:

A. The Personal Laws (Amendment) Act, 2019:

This amendment aimed to address the complexities arising from personal laws concerning various communities in India. It aimed to rationalize and harmonize succession laws to ensure fairness and equal treatment for all individuals, irrespective of their religious affiliation. However, it must be noted that personal laws still serve as the primary source of guidance for succession matters within specific religious communities.

B. The Indian Succession (Amendment) Act, 2020:

The Indian Succession (Amendment) Act, 2020 revised the Indian Succession Act, 1925. One significant change introduced by this amendment is the recognition of “living wills” or advance medical directives. This provision allows individuals to express their consent regarding medical treatment in the event of incapacitation. It ensures that their wishes are respected and alleviates potential disputes among family members during such difficult times.

III. Recent Developments in Indian Succession Laws

Recently, significant developments have been observed in succession laws. These substantial modifications to succession laws are attributed to amendments or judgments delivered by various courts in the country.

  1. The amendment 2005 had retrospective effect, enabling daughters to claim their equal rights to ancestral property, including proceedings initiated before the amendment. The Supreme Court emphasized the importance of gender equality and reinforced the rights of daughters, even in cases where the father had passed away prior to the amendment.

(Prakash & Ors v. Phulavati & Ors (2015)

2     2. Even if a father had died before the 2005 amendment, daughters still had the right to claim an equal share in the ancestral property. The daughter's right was not dependent on whether her father was alive or not when the amendment was enacted. (Danamma @ Suman Surpur & Anr. v. Amar & Ors (2018)

           3.  The daughters possess the right to inherit their parents' self-acquired property, as well as any other property over which they hold complete ownership. This rule extends to situations where a daughter's parents died intestate without leaving behind a will prior to the enactment of the Hindu Succession Act in 1956. (Arunachala Gounder (dead) v. Ponnuswamy)

 4.     In the event that a Hindu woman dies intestate without a valid will and does not have any children, the property she inherited from her father or mother would be transferred to the descendants of her father. Conversely, the assets she inherited from her husband or father-in-law would be granted to the heirs of her husband.

 5.    If a married woman, who has a spouse and children, passes away, her properties, including any inherited properties, would be transferred to her husband and children as stated in Section 15(1)(a) of the Succession Act. ( Agnes alias Karpaga Devi)

 6.  According to the recent ruling of the Madras High Court (HC), under the Indian Succession Act of 1925, when a man passes away without leaving a will, his assets are to be divided among his widow and children. Evidently, the high court has clarified that the mother of the deceased holds no right to her late son's properties.

 7. An adopted child holds the status of a Class-I heir, thereby possessing the same rights as a biological child. However, if the adoptive father has been disqualified from inheriting any property due to their involvement in a criminal act, the adopted child cannot claim ownership of the paternal property. Furthermore, even if the adoptive father converts to another religion, and the adopted child follows the same religious beliefs, the child is still unable to inherit the ancestral property.

8. According to the ruling of the Telangana High Court, once a child is adopted, they no longer hold the status of a coparcener within their birth family. As a consequence, they relinquish any rights or claims they may have had over the ancestral property of their birth family. However, if a partition of the property had already occurred before the adoption, and the adopted individual had been allotted a specific portion of the property, they would be allowed to carry that portion with them to their new family.

 9.  A Hindu man abandons his wife without obtaining a legal divorce and subsequently remarries; the initial marriage remains valid under the law, making the first wife and their children legitimate beneficiaries. However, if a divorce takes place, the first wife will no longer have any rights to claim the property, and all her personal belongings will be exclusively hers. In cases where both partners financially contribute to acquiring a property, it is important to maintain proper documentation that clearly indicates the percentage of monetary contribution made by each spouse. This documentation becomes crucial in the event of a divorce.

 10.   If a husband's first wife has passed away or divorced before he remarries, the second wife is entitled to all the legal rights on her husband's property. This includes ownership and inheritance rights. Furthermore, her children hold equal rights to their father's share, alongside the children from the first marriage. However, it is crucial to note that if the second marriage is not recognized as legal, neither the second wife nor her children enjoy the privilege of being legal heirs in the ancestral property of the husband.

 11.  The Gujarat High Court recently held that children born out a widow’s first marriage have a right in her property the woman receives from her second husband. This remains true even if the children were born out of wedlock or through an illicit relation.

 12. During the wife’s lifetime, the husband has no right over her property. If the wife passes away, her share will devolve upon her husband and children alike. If the wife gets her share in her lifetime, the husband can inherit the same. If she hasn’t inherited from her parents or ancestors during her lifetime, the husband cannot claim it. If a man has bought property in the name of his wife with his own finances, he can retain the ownership even after her death.

13.  A Hindu father or any other managing member of a Hindu Undivided Family possesses the authority to gift ancestral property solely for a 'pious purpose', which refers to a gift intended for charitable and/or religious endeavors. Consequently, a deed of gift related to ancestral property made 'out of love and affection' does not fall under the purview of the term 'pious purpose'.

14. The coparcenary right to inherit family property extends even to children born out of a live-in relationship, as decided by the Supreme Court. Offspring born to live-in partners who have resided together for a significant duration are entitled to assert their rights over their father's ancestral property.

15. The situation of half-blood children often occurs when one child is born to a father with a different spouse or partner, while another child is born to the same mother but with a different spouse or partner. In these cases, if one parent is common to both children due to remarriage or divorce, a preference is typically given to the child who is biologically closer to that parent in terms of inheritance and other matters.

16. The children born out of void or voidable marriages have the right to inherit their parent's assets, as per the recent ruling. It should be noted that this ruling is specifically applicable to Hindu joint family properties governed by Hindu Mitakshara Law.

17. According to Section 16 (3) of the Hindu Marriage Act illegitimate children born out of wedlock have limited rights to inheritances, specifically pertaining to their parents' properties only and not those of any other relation. This provision determines the inheritance rights of illegitimate children, stating that they are solely entitled to inherit their father's personal possessions, excluding any property belonging to their paternal family. However, a Supreme Court verdict has affirmed that unmarried children have the right to claim not only their father's personal assets but also the properties inherited from their ancestors.

18. The Kerala High Court recognized the rights of a Christian wife in accordance with Indian succession laws. It was concluded by the court that if a legally acceptable will is not present, the wife is entitled to an equal share of her husband's estate, which encompasses jointly owned properties as well. This verdict underscores the importance of gender equality and equitable distribution of wealth. (Nelson Elias vs. Mariya Gracy)

19. The Surrogacy (Regulation) Act, 2020, for instance, provides legal recognition to intended parents by granting them the same rights and responsibilities as biological parents. In doing so, it ensures that children born through surrogacy are not disadvantaged in terms of inheritance and other legal rights.

20. The Supreme Court addressed the concept of ‘benami’ transactions in the context of succession laws. The court held that a benami transaction cannot be relied upon to establish the title of the person claiming under the benami transaction. This judgment aimed to prevent fraudulent practices and promote fairness in succession matters. ( Kale v. Deputy Director of Consolidation)

Conclusion:

The recent developments in Indian succession laws demonstrate a progressive shift towards equality, inclusivity, and modernization. The introduction of new general rules, provisions, amendments, and landmark case laws has aimed to ensure gender equality, harmonize personal laws, simplify the succession process, and protect individuals' autonomy. These reforms have greatly contributed to a more just and equitable distribution of assets after an individual's demise. Nonetheless, it is essential to continue monitoring the implementation and interpretation of these laws to ensure their effective application and address any challenges or gaps that may arise.

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An Insight into Inheritance of Property Rights under Indian Succession Laws Part I

                   An Insight into Inheritance of Property Rights under Indian Succession  Laws 

                                                                            Part I

By SangsLegal

2nd December 2023

Hindu succession laws govern the distribution of property among individuals belonging to the Hindu community. These laws have evolved over time to ensure equitable rights and share of property among family members .The Hindu Succession Act, 1956, serves as the primary legislation governing the succession of property among Hindus, Buddhists, Jains, and Sikhs. The Act provides a comprehensive framework for inheritance, covering various aspects such as intestate succession, testamentary succession, and coparcenary rights.

  I.    Coparcenary Rights

The Mitakshara School acknowledges two methods of property transfer: through survivorship and succession. Under the principle of survivorship, coparcenary property is passed on, whereas succession applies to an individual's separate or self-acquired property.

Before the enactment of the Hindu Succession (Amendment) Act, 2005, only male members within a Hindu joint family could claim coparcenary rights. Coparcenary, a concept unique to Hindu law, granted equal right over ancestral property to all male descendants of the same clan, with the eldest male member acting as the head. However, the 2005 Amendment made revolutionary changes by conferring equal coparcenary rights to both daughters and sons.

       II.  Types of Properties and Inheritance Rules

       A.  Ancestral Property:

Ancestral property refers to property that is inherited through successive generations and is passed down from one's male ancestors. The right to ancestral property is acquired by birth, meaning that children have an absolute share in it.

Joint Hindu Family: An ancestral property is held by the members of the joint Hindu family. It is the collective property in which all members possess an undivided interest.

Equal Coparcenary Rights: Both male and female descendants of up to four generations have an equal right to inherit this property.

Mitakshara and Dayabhaga: The Mitakshara school of law governs the rules of ancestral property in most parts of India, while the Dayabhaga school is followed in Bengal and applies different principles.

Right of Survivorship: In ancestral property, upon the death of a coparcener, the surviving coparceners automatically inherit the deceased's share. Any coparcener can demand partition of the property to claim and possess their respective share.

Mitigation of Disabilities: The Act also removed the gender-based distinction between "son" and "daughter," eliminating the earlier concept of limited ownership for women.

 B. Self-Acquired Property

Any property acquired by a coparcener through his/her own efforts is treated as self-acquired and can be alienated or bequeathed freely. It refers to assets or wealth acquired by an individual through personal efforts, such as inheritance, purchase, gift, or profession. Here the owner has an exclusive ownership and absolute right to use, alienate, or bequeath it according to their discretion.

Exceptions: There are certain legal restrictions on alienation in cases like gifts with conditional clauses, religious endowments, or property with encumbrances

III.     Types of Succession

Under Hindu succession laws, there are two types of succession: Testamentary and Intestate.

         A. Testamentary Succession

Testamentary succession comes into play when an individual creates a will, thereby disposing of their property according to their wishes after death. The will should be executed with proper legal formalities and should clearly state the disposition of the property. In cases where a valid will exists, the property is distributed as per the testator's intentions, ensuring that the provisions of the will are duly fulfilled. The testator can bequeath their property to any person, including family members, relatives, friends, charitable organizations, or even non-Hindus.

If the testator does not specifically name beneficiaries, the property will be distributed according to the general provisions of the Hindu Succession Act.

        B.  Intestate Succession

Intestate succession occurs when a person dies without leaving a valid will. In such cases, the distribution of property is governed by the laws of intestate succession. The Hindu Succession Act, 1956, provides clear guidelines to ensure that eligible family members receive their rightful share.

Legal Heir: If a person dies without a will, their self-acquired property is distributed among legal heirs according to the provisions mentioned under the Hindu Succession Act.

Succession among Class I Heirs: If the deceased has neither left behind a will, nor any Class II heirs, the property is divided among Class I heirs. The Act provides an exhaustive list of Class I heirs, including sons, daughters, widows, mothers, etc.

Succession among Class II Heirs: In the absence of Class I heirs, the property passes on to Class II heirs, as per the order of succession mentioned in the Act.

Agnates and Cognates: In the absence of all Class I and Class II heirs, the property may devolve to distant relatives called agnates and cognates.

Escheat: If no legal heirs are found, the self-acquired property may escheat to the State.

        C.   Succession Intestate and Succession under a Will

Testamentary succession under a will takes precedence over intestate succession, where the property is distributed according to the statutory provisions of the Hindu Succession Act.

Revocation and Alteration:

The testator reserves the right to revoke or alter a will during their lifetime. This can be done by executing a subsequent will or through a codicil, which is an amendment to the original will. Revocation can also occur by destroying the will with the intention of cancelling its effect.

Probate and Succession Certificate:

Probate is the formal legal procedure for validating a will and ensuring its authenticity. The court grants probate after verifying the execution of the will and the validity of its contents.

In cases where the will is not probated, the legal heirs may obtain a succession certificate from the court to establish their right to inherit the deceased's property.

To which properties does this Act not apply?

Any property that falls under the governance of the Indian Succession Act, 1925 due to the provision stated in Section 21 of the Special Marriage Act, 1954. According to Section 21 of the Special Marriage Act, the Special Marriage Act determines the succession of any individual's property whose marriage is solemnized under this Act, as well as the property of their offspring.

Right of an unborn child

The Act acknowledges the entitlement of a child in the mother's womb to inherit property as well According to this provision, an unborn child within a woman's womb would possess the right to inherit property, provided they are born before the individual dies without a valid will.

 D.  Disqualification

The Act abolished any exclusion due to physical deformities, mental capabilities, or morals, and established a fresh set of disqualifications. Consequently, following the amendment, the classification of disqualification for heirs has been modified to,

1. Disqualification because of homicide : A murderer is not eligible to inherit the victim's property, according to Section 25 of the Act. A person who helps or abets in such a crime is likewise considered a murderer under this section.

2.Disqualification as a result of conversion :A person who converts from the Hindu religion to any other religion is ineligible under Section 26 of the Act, as are his offspring born after the conversion. His descendants can only inherit if they are Hindus at the time of succession.

Indian succession laws have undergone significant changes in recent years, aimed at providing a more rationalized and uniform approach to the distribution of assets after an individual's death.For example,the provisions of Hindu succession laws, in conjunction with the 2005 Amendment, have sought to bridge the gender gap by granting equal coparcenary rights to both daughters and sons. The evolving nature of these laws, supported by landmark judgments like Prakash v. Phulavati and Danamma v. Amar, have paved the way for a more inclusive and equitable approach to succession within the Hindu community.

                                         (The exploration of recent developments in succession laws will be continued in part II of this blog....... )

An Analysis of Legislations and Provisions Safeguarding Women's Rights during Matrimonial Disputes

 An Analysis of Legislations and Provisions Safeguarding Women's Rights during Matrimonial Disputes

by SangsLegal.com

26th October 2023

Matrimonial disputes and the challenges faced by women within the institution of marriage have been a longstanding concern in societies across the world. Various provisions have been developed under different acts to safeguard women's rights and provide them with protection in cases of marital discord.

I.  The Protection of Women from Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act (PWDVA) is a significant legislation aimed at protecting women from all forms of physical, mental, emotional, and economic abuse within the confines of marriage. Under this act, the following provisions are made:

Right to Protection and Residence:

The act grants women the right to seek protection from domestic violence by obtaining a protection order, restraining the abuser from entering or remaining in a shared household. This provision ensures that women have a safe place to reside during the course of legal proceedings. This provision empowers women to reside in the shared household even if they have been evicted or excluded from it.

Monetary Relief: The act ensures that women are entitled to financial support, including maintenance, medical expenses, and compensation for injuries and damages caused by the abusive spouse.

Right to a Safe and Violence-Free Environment: The act affirms every woman's fundamental right to live in a safe environment free from any form of domestic violence. It recognizes that women should have the freedom to express themselves and live without fear or threat.

Right to Legal Assistance: The act provides for free legal aid to women who cannot afford legal representation. This ensures that women have access to justice and equal opportunities to present their case in court.

Right to Confidentiality and Privacy: To protect survivors of domestic violence, the act guarantees the confidentiality of their personal information throughout legal proceedings. This provision aims to create a safe space for women to share their experiences without fear of stigma or retaliation.

Right to Medical Assistance and Healthcare: Recognizing the need for comprehensive support, the act provides women with the right to medical services, including healthcare and psychiatric assistance. This provision ensures that survivors of domestic violence receive the necessary medical attention to aid in their physical and emotional recovery.

The Role of Support Institutions:

Protection Officers: The act establishes the role of Protection Officers who are responsible for assisting aggrieved women. These officers ensure the effective implementation of protection orders, provide legal aid, and support women in accessing various resources available to them.

Service Providers: The act mandates the establishment of service providers, such as shelters, counselling centres, medical facilities, and helplines, to provide immediate assistance and support to women facing domestic violence. These institutions play a crucial role in offering a safe haven and guidance to survivors.

Criminalization of Domestic Violence:

The act explicitly criminalizes acts of domestic violence and, depending on the severity of the offense, prescribes penalties for the perpetrators. This legal provision sends a strong message that domestic violence will not be tolerated and holds abusers accountable for their actions.

II.  The Dowry Prohibition Act, 1961:

The Dowry Prohibition Act was enacted to eradicate the practice of dowry, a tradition that often leads to marital discord and abuse of women. Some important provisions of this act include:

 Prohibition of dowry: The act explicitly prohibits the giving or receiving of dowry, making it an offense punishable by law.

Protection of Victims: The act empowers the bride or her relatives to report any demands for dowry to the authorities, ensuring protection and support for victims.

Rights of Women

The Dowry Prohibition Act not only criminalizes the dowry system but also endows women with various rights, thereby empowering them in multiple spheres of life. Some key rights conferred upon women by the Act are as follows:

Right to Protection: The Act recognizes and acknowledges the vulnerability of women in the context of dowry-related abuse. It provides women with the right to approach the law enforcement agencies to seek protection against any form of dowry harassment or violence.

Right to Voidable Marriage: The Act allows women to declare their marriage as voidable if it was conducted under coercion or due to the dowry demand. This provision aims at empowering women to break free from oppressive relationships.

III.  The Hindu Marriage Act, 1955:

The Hindu Marriage Act is a comprehensive legislation that regulates various aspects of marriage, including marriage ceremonies, rights, and obligations of spouses. It includes provisions related to protection of women, such as:

Permanent Alimony and Maintenance-Provisions for the court to grant permanent alimony and maintenance to the spouse who is unable to support themselves financially after the dissolution of marriage. The act ensures that a wife is entitled to maintenance from her husband in case of separation or divorce, providing her with financial support.

Maintenance Pendente Lite - Provision for an interim maintenance allowance to be paid by one spouse to the other during the pendency of divorce proceedings.

Restitution of Conjugal Rights: This provision allows a spouse to approach the court for the restitution of conjugal rights (Right of staying together) ensuring that the husband does not neglect or abandon his wife. It is a legal remedy available to spouses whose rights to cohabitation and companionship have been denied.

Judicial Separation - Temporary separation ordered by the court to provide spouses with a chance to resolve their marital discord.

Divorce: The act grants women the right to seek divorce on various grounds, including cruelty, adultery, or desertion, offering them an exit from abusive, unhappy marriages.

Right to Remarriage: The Hindu Marriage Act acknowledges that individuals have the right to rebuild their lives after the end of a marriage. The Act allows for remarriage after divorce or the death of a spouse.

Remedies for Marital Discord:

A. Counselling and Mediation: Counselling through professional counsellors or marriage counsellors can help couples resolve their issues, improve communication, and rebuild their relationship.

Mediation: Mediation by trained mediators can provide a neutral forum for spouses to discuss their concerns and work towards finding mutually agreeable solutions.

B. Legal Remedies:

Restitution of conjugal rights: Filing for restitution of conjugal rights can encourage spouses to resume marital relations while resolving misunderstandings.

IV.  Hindu Adoption and Maintenance Act 1956

Section 18:  A wife has the right to seek maintenance from her husband on the grounds specified in section 13 of the Hindu Marriage Act. This right remains applicable even if there are ongoing divorce proceedings between the parties. Additionally, if the parties have adopted a child and divorce proceedings are either imminent or already in progress, the wife can still claim maintenance under this particular section. A wife has the right to claim maintenance from her husband to establish a separate residence for herself. This may arise after the legal separation has been granted by the court or if she has valid reasons, as outlined in section 18, to live apart.

V.   The Muslim Women (Protection of Rights on Marriage) Act, 2019:

The Muslim Women (Protection of Rights on Marriage) Act, commonly known as the Triple Talaq Act, seeks to protect the rights of Muslim women against the practice of instant divorce (triple talaq) by their husbands. The Act grants women the right to receive maintenance from their former husbands for the period of iddat (waiting period after divorce). This act includes the following provisions:

Criminalization of Triple Talaq: The act criminalizes the practice of instant divorce, making it a punishable offense.

Monetary Assistance: The act entitles Muslim women who have been subjected to triple talaq to receive appropriate monetary assistance from their husbands.

Custody of Children: The act ensures that the custody of minor children will be awarded to the affected woman, providing her with legal protection and support.

VI.  Protection of Married Women under the Indian Penal Code (IPC)

The protection of married women under the Indian Penal Code is of utmost importance, as it ensures their safety, security, and well-being within the framework of Indian society.

1.     Section 306: Abetment to suicide - If someone abets the suicide of a married woman due to harassment or cruelty, they can be held criminally liable.

2.     Section 354: Protection Against Offences Affecting the Modesty and Dignity of Women: Section 354 deals with assault or use of criminal force to outrage the modesty of a woman. This provision ensures that any act of indecent assault, molestation, or unwanted advances towards married women is punishable under the law. Such regulations contribute to creating a safe environment for married women, where their dignity and autonomy are respected.

3.     Section 375: Protection against Rape- Section 375 defines the offence of rape, irrespective of the marital status of the victim. Moreover, the Criminal Law (Amendment) Act, 2013 widened the scope of marital rape by criminalizing non-consensual sexual acts within a marital relationship. These legal amendments underline the importance of consent within a marriage and ensure that married women are equally protected under the law.

4.     Section 493:Protection against Offences Related to Marriage - Section 493 criminalizes the act of cohabitation by a man deceitfully inducing a married woman to believe that she is lawfully married to him without her knowledge or consent. This provision aims to protect married women from fraudulent marriages and provides legal recourse to those who may fall victim to such deceptive practices.

5.    Section 498A: The provision criminalizes cruelty by husband or relatives of the husband towards a married woman. Section 498A explicitly deals with cruelty towards married women and places an obligation on the husband or his relatives not to subject the woman to any cruelty, harassment, or demands for dowry. It includes both physical and mental torture.

6.   Protection Against Domestic Violence: Section 498A, as mentioned earlier, ensures protection against cruelty. Additionally, the Protection of Women from Domestic Violence Act, 2005 provides a comprehensive framework for addressing domestic violence against married women. Leveraging the provisions of this act, married women can seek legal recourse against any form of physical, emotional, verbal, or economic abuse inflicted upon them within their matrimonial homes.

VII.   Section 125 Criminal Procedure Code

Section 125 CrPC lays down the legal framework for providing maintenance to certain categories of individuals, including wives, children, and parents.The objective of this provision is to alleviate the financial burden faced by women who are unable to sustain themselves due to various reasons such as divorce, desertion, or abandonment.

Provision for Maintenance:

A. Section 125 CrPC mandates that a husband is legally bound to provide financial support to his wife as long as she is unable to maintain herself.

B. Maintenance is not limited to divorced or legally separated women; it also extends to women whose marriage is declared null and void or the husband has remarried without the consent of the first wife.

C. The provision also applies to women in live-in relationships who are entitled to maintenance if they can establish their relationship under existing laws.

D. The quantum of maintenance is determined by the court after considering various factors such as the earning capacity of the husband, the financial needs of the wife, standard of living, and other relevant circumstances.

E. The court may direct the husband to make monthly or lump sum payments for maintenance, taking into account the woman's requirements.

F. If the husband refuses to comply with the court's order, the court has the authority to initiate legal action, including the attachment of his property or imprisonment, to enforce the payment of maintenance.

Revision and Enforcement:

A. Section 127 CrPC allows for the revision of maintenance orders if there has been a material change in circumstances or subsequent developments that warrant modification.

B. The orders passed under Section 125 CrPC have the same legal enforceability as that of a civil decree, enhancing the efficacy of this provision.

C. Failure to comply with the maintenance order can result in the defaulter being imprisoned, ensuring the enforcement of the court's decision.

B. The Evidence Act, 1872

Section 113-A. This provision states that if the wife commits suicide within a period of seven years of her marriage, it will be presumed that she had been subjected to cruelty by her husband and his relatives as per sec.498-A, IPC.

Conclusion:

Marital discord is an unfortunate reality in any society, and India is no exception. The provisions outlined in the marriage laws and criminal laws aim to protect the rights of women and provide remedies to address disputes within marriage. However, it is crucial to recognize that legal remedies alone may not always be sufficient, and efforts should be made to promote communication, understanding, and respect within marriages. Society must continually strive towards fostering healthy relationships, ensuring the well-being of both spouses, and reducing instances of marital discord.

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The Protection of Women from Domestic Violence Act 2005: Safeguarding Women from Marital Discord

The Protection of Women from Domestic Violence Act 2005: Safeguarding Women from Marital Discord

by SangsLegal.com

16th October 2023

The Protection of Women from Domestic Violence Act, 2005commonly referred to as D.V Act is a pioneering legislation aimed at offering comprehensive protection to women against various forms of abuse within the confines of their marital homes. The Act defines domestic violence as any act or conduct that causes harm to a woman or endangers her life, safety, health, or well-being. It encompasses physical, sexual, verbal, emotional, and economic abuse, as well as harassment via various forms of communication.

I. Protection Orders

The Act empowers women to seek legal protection against domestic violence by obtaining various types of Protection Orders from the authorities. These orders aim at preventing further acts of abuse and ensuring the safety of the woman.

a. Protection Order: This order aims at restraining the abuser from committing any act of domestic violence, excluding him from the shared household, or prohibiting him from entering a particular area or place frequented by the woman.

b. Residence Order/Shared House hold: This order allows the woman to continue residing in the shared household or any other alternative accommodation provided by the authorities, irrespective of her ownership or rights in the property.

c. Monetary Relief Order: This order enables the woman to claim compensation for the losses and expenses incurred as a result of the violence, including medical treatment, damages, and maintenance.

d. Custody Order: This order allows the woman to seek custody of her children, ensuring their well-being and protection from any harm.

e. Compensation order:   This order entitle the woman to get compensation for injuries including mental torture and emotional distress caused by the acts of domestic violence committed by the respondent.

The woman is entitled to bring along all of her personal possessions, including clothing, jewellery, valuable items, and money. This collection of her belongings, known as her stridhan, can be retrieved with assistance from a local NGO, the police, or the court. In the event that her husband or in-laws fail to return her stridhan when she leaves the home, she retains the option to lodge a police complaint under Section 406 of the IPC.

Who is covered under the Act?

The Act extends its protection to all females residing in a shared household, encompassing those who fulfill the roles of mother, sister, wife, widow, or partner. This relationship can be established through either marriage or adoption. Furthermore, it also encompasses females living together as part of a joint family unit.

However, it is important to note that female relatives of the husband or male partner are excluded from filing complaints against the wife or female partner. For instance, the mother-in-law is ineligible to file an application against her daughter-in-law, but she retains the right to file an application against her daughter-in-law if she aids her son in committing acts of violence against her.

To whom should a woman turn to file a complaint?

The available options for the woman include seeking assistance from the Protection Officer, securing the services of a private lawyer or a legal aid lawyer, and reaching out to a local NGO. These individuals or organizations can provide support in approaching the court to safeguard her rights. Alternatively, she can visit a police station where officials will guide her to the relevant Protection Officer in her area.

How to seek a Court Order?

When a woman experiences physical abuse and seeks assistance from the Protection Officer, a Domestic Incident Report (DIR) is prepared as evidence of domestic violence.

If the woman opts to consult a private lawyer directly, the lawyer will create a comprehensive application along with a request for interim reliefs. In such cases, there is no necessity to approach a protection officer and obtain a DIR.

If the woman possesses any supporting evidence, such as previously filed police complaints or medical records from injuries sustained due to the abuse, it should be mentioned. Additionally, any proof of the husband's income can be attached if the woman is seeking a maintenance order.

Inclusion of Emotional and Verbal Abuse

The Act recognizes the detrimental impact of emotional and verbal abuse on women's well-being and mental health. It explicitly includes these forms of abuse within the definition of domestic violence, offering women legal recourse to protect themselves from such acts.

II. Protection Officers

A "Protection Officer" (PO) refers to a government official who is assigned or designated by the Ministry of Women and Child Development. Their primary responsibility is to extend various forms of assistance to women, such as facilitating their court interactions, arranging shelter at a shelter home if needed, providing access to medical help at a hospital, or aiding in accessing other government schemes specifically devised to support women.

III. Duties of Police and Service Providers

The Act imposes certain responsibilities on the police and service providers to ensure the effective implementation of its provisions. Police are obligated to respond promptly to reports of domestic violence and assist the affected woman in obtaining medical treatment and legal aid. Additionally, service providers are required to provide support services, such as counselling, medical aid, and safe shelter, to women affected by domestic violence.

IV. Confidentiality and Privacy

The Act emphasizes the importance of maintaining strict confidentiality and privacy throughout legal proceedings, ensuring that the identity and personal information of the woman are protected. This provision is crucial in safeguarding the woman's safety and preventing any potential backlash or retaliation from the abuser.

V. Penalty for Breach of Protection Orders

To discourage violators from repeating their acts of abuse, the Act provides for penalties and imprisonment for those who breach Protection Orders. This provision acts as a deterrent and reinforces the message that any violation of the woman's rights will not be tolerated.

Important Judgements

1. Simply obtaining a 'maintenance' order under Section 125 of the Code of Criminal Procedure does not prevent an 'aggrieved person' from seeking suitable remedies as per the Protection of Women from Domestic Violence Act, 2005: Supreme Court

2. A victim of domestic violence can enforce her right to reside in a shared household, irrespective of whether she actually lived in the shared household: Supreme Court 

3. Under certain circumstances, a court can direct a husband to provide monetary expenses to cover a wife's expenses in lieu of granting a shared residence: Karnataka High Court

4. As per Domestic Violence Act, a wife's opposition to her husband's plea for the restoration of conjugal rights does not impact her right of residence: Delhi High Court

5. Divorced Wife Not Entitled To Right Of Residence Under Section 17 Domestic Violence Act: Kerala High court

6. Temporary Residence' Under Domestic Violence Act Includes Victim's Shelter Amidst Matrimonial Home Turmoil: Jammu & Kashmir High Court

7. The Protection under Domestic Violence Act is not applicable to husbands or male members of the family: Delhi High Court

Conclusion

The Protection of Women from Domestic Violence Act has emerged as a powerful tool for the protection of women against marital discord and domestic violence in India. Its provisions enable women to seek legal redress and protection, ensuring their safety, physical and emotional well-being, and the overall preservation of their rights. While the Act has made significant strides in addressing domestic violence, continuous efforts are required to create awareness, ensure effective implementation, and provide timely support services to the victims. Empowering women and holding perpetrators accountable for their actions are essential steps toward eradicating domestic violence and fostering a society that upholds the principles of equality and respect for all.

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