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Uttar Pradesh Apartment Act – Common Expenses

Common expenses are of two kinds : one, general common expenses incurred in running, maintaining the common areas and facilities which is referred to as the Annual Maintenance Contract (AMC), second type of expenses declared as expenses for which the resolution of the general body of the association is required, therefore, every and any kind of expenses cannot be included in the Annual Maintenance Contract, therefore, any default in payment of such expenses would not debar a member from participating in the election. It is only the common expenses which being the Annual Maintenance Contract which is paid by the residents/apartment owners would be entitled to participate in the activities of the association including elections. Resident Welfare Association v. State Of U.P., 2016 (114) ALR 404.

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Words “Family” and “Household”

“Household” and “Family” are not synonymous to each other and both the provisions would take its colour, in reference to the context it has been used, keeping in view the object and purpose sought to be achieved. According to Concise Oxford English Dictionary ‘family’ means a group consisting of two parents and their children living together as a unit; a group of people related by blood or marriage; the children of a person or couple; all descendants of a common ancestor.
Black’s law dictionary defines ‘family’ as (i) A group of persons connected by blood, by affinity or by law especially within two or three generations (ii) A group consisting of parents and their children (iii) A group of persons who live together and have a shared commitment to a domestic relationship.
According to Law Lexicon term ‘family’ may be said to have a well defined, broad and comprehensive meaning in general, it is one of great flexibility and is capable of many different meanings according to the connection in which it is used. Thus, it may be ‘children’, ‘wife and children’, ‘blood relations’ or the ‘members of the domestic circle’. According to the context, it may be of narrow or broad meaning as intention of the parties using the word, or as the intention of law using it, may be made to appear.
In its ordinary and primary sense the word ‘family’ signifies the collective body of persons living in one house or under one head or manager or one domestic Government. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong.
According to Law Lexicon ‘family’ may include even domestic servants and sometimes persons who are merely boarders.
On the other hand the term “household” means the collection of individuals who normally eat food prepared in the same kitchen. In Black’s Law Dictionary household has been mentioned belonging to the house and family as well as a family living together or a group of people who dwell under the same roof and in the Law Lexicon it has been described as number of persons dwelling under the same roof and composing a family and by extension all who are under one domestic head.
The term ‘family’ and ‘household’ are capable of wide and varying meaning and same cannot be left to be assigned a meaning in its general terms and the same has to be interpreted in reference to the context it has been used keeping in view the overall object and purpose sought to be achieved. Indrapal Singh v. State of U.P. and Others, (2014) 1 UPLBEC 379 (FB)

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Joint Hindu Family and Patriarchal Family – Property – Concept of

The concept of Joint Hindu Family and its Karta is quite ancient and an integral part of the way of living and customary rules of society among Hindus. In India and particularly among Hindus the family bonds are not only very strong but they have given right to a society who believe in a Joint Family even going to the extent of concept of village community. In the concept of property, there have been three layers, i.e. Patriarchal Family, Joint Family and Village Community. The patriarchal family is headed by father and consists of his offsprings. The Joint family may include within itself the members, related to each other, though not having common ancestors and goes beyond the family flowing from father himself. It is said that unlike England, where the concept of ownership, as a rule, is single, independent and unrestricted, and it may be joint, but the presumption is to the contrary. It may be restricted but only in special instances and under special provisions. The situation in India is totally different. Here the joint ownership is normally the rule and may be presumed to succeed until contrary is proved. If an individual holds property in severalty, in the next generation, it will relapse into a stand of joint-tenancy. A Hindu may start with nothing and may make a self acquired fortune by dint of his own labour, capacity and merits and he is the absolute owner of estate but in a couple of generations his offsprings would ramify in a joint family, like a banyan tree which also stands as a single shoot. If the property is free from hands of its acquirer, it will become fettered in the hands of his heirs.
The “patriarchal family” may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grandfather, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect , if not always of affection, which is probably seated deeper than any positive institution. Manu says, “three persons, a wife, a son, and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong. “ Narada says, “he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he may have grown old.”
The “joint family” is normally a transitional form from “patriarchal family” at the death of common ancestors or head of the house. If the family chooses to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the latter can only be so by a delegated authority. He is the primus but inter pares. An undivided Hindu family thus is ordinarily joint not only in estate but in food and worship. The presumption therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin. However, there is no presumption that a family because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not a necessary requisite for constitution of a joint family, though where persons live together joint in food and worship, it is difficult to conceive of their possessing no property whatsoever, such as ordinary household articles which they would enjoy in common. Smt. Ramwati v. Dharmdas, 2013 (120) RD 842.

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Cancellation of Bail

While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the Court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail. Kanwar Singh Meena v. State of Rajasthan and another, (2012) 12 SCC 180.

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