Nikhil Chachra

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In most of the cases in India, the custody of the child is granted, by the family court, to one parent and the access of child is granted to both of them. Data clearly shows that out of around 90 cases in a particular year, the custody of the child has been granted to fathers in only 2 cases. What does this signify? Do mothers have an upper hand in the child custody cases in India? No, despite data favouring the mothers, it is not the case. Many-a-times fathers also believe that they can claim the custody once the child attains a particular age. However, this is nothing more than a myth, a disbelief that many continue to live with.

It has been evident in several landmark judgements that the courts have given high importance to the best interest and the ‘right of the child’ compared to the ‘right of a parent’ than anything else while assigning the custody after divorce to a particular parent. However, there may be exceptions or special circumstances that courts consider on case-to-case basis. For example, a) in case a child is less than 5 years old, the custody is usually given to the mother, b) generally father gets the custody of older boys and mother is given the custody of older girls and c) courts also consider the choice of the child who is above the age of 9 years.

Types of Child Custody

It brings us to a point where it becomes imperative to throw light on the types of child custody allowed by Indian law. It can be one of the following kinds:

• Physical Custody – where the child is handed over to the custodial parent for living and the other parent is allowed to visit, meet and interact with the child at regular intervals.
• Joint Custody – where child lives with both parents on rotational basis and duration of child’s stay may vary from several days to weeks to months based on mutual agreement between the separated parents.
• Sole Custody – where the child is handed over entirely to one parent in case the court finds the other parent to be abusive, unstable, offensive or incapable of upbringing the child.
• Third Party Custody – where a guardian or third person gets the custody of the child from court instead of the biological parents. This is also often termed as non-parental custody.

Those who read this Article also Consulted a Lawyer about Child Custody process in India.  

Child Custody Laws In India

We must also briefly know legal provisions that are applicable. In India, the Guardian and Wards Act 1890 has provisions related to child custody after divorce. At the same time, India is a vast nation with diverse religions and there are corresponding laws to deal with separation and child custody. The legal provisions that exist in the Indian Constitution based on the religion we belong to are:

• Custody under Hindu Law – which has provisions under the Hindu Marriage Act 1955 (section 26), the Special Marriage Act 1954 (section 38) and the Hindu Minority and Guardianship Act 1956.
• Custody under Muslim Law – which allows only the mother to seek custody of her child(ren) under the Right of Hizanat.
• Custody under Christian Law – which allows for child custody under the Divorce Act 1869 (section 41) only after separation decree is granted.
• Custody under Parsi Law – which allows for child custody under the Guardian and Wards Act 1890 and gives high importance to welfare of the child.

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It is already a nightmare for parents who are beleaguered with separation. Adding to woes, is the complications of getting the custody of their biological child(ren). It is a battle that none would want to lose. Imagine yourself in this situation where you are looking for information on how decisions are taken and judgements granted with respect to child custody after divorce. The best way is to contact a child custody lawyer who not only can guide you in the process but sail you through with bare minimum stress. 

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Common Terms related to Testamentary Succession under Hindu Law

It is important to understand the frequently used terms that might sound complicated but are easy to interpret. They are:

• Will – A legal declaration created by a person expressing clear intention or wish with regards to how his or her property and assets Will be transferred after death.

• Testator – A person who creates his or her Will.

• Executor – A person appointed by the Testator for executing the Will.

• Administrator – A person appointed by the Court for executing the Will.

• Attestation of Will – It is the process of signing the Will by two witnesses to verify the signatures of the executant.

• Codicil – A legal document made by Testator and signed by two witnesses for making minor changes in the Will that has already been executed.

• Probate – It is a documentary evidence of the appointment of the Executor and establishes the validity of the Will.

• Letter of Administration – A certificate granted by the Court for appointing an Administrator of the Will.

Those who read this Article also Consulted a Lawyer about Will and inheritance. 

Important Characteristics of a Valid Will

A Testator must consider the following essential characteristics while creating his or her Will:

• It is a written document expressing the testator's clear intentions or desire with respect to transfer of his or her assets or property.

• It can be created by any person of age 18 years or above who is capable of entering into an agreement.

• A person influenced by alcohol or fear or affected by illness or fraud cannot make a Will.

• The Indian Succession Act, 1925 does not prescribe any specific format of writing a Will.

• Minor unintentional errors in a Will – error in name spellings or details of property – does not alter the true intention of the testator.

• The Testator should sign the Will which should be countersigned by two witnesses. In cases where the testator cannot sign, thumb impressions of the testator should be taken.

• The signature of the testator should appear at the bottom of the page or at the end of the contents of the Will.

• The witnesses to the Will should not be the beneficiaries themselves.

• A Will comes into force only after the death of the testator.

• And finally, it is not mandatory to make the Will document on a stamp paper and register it. The testator can also write it on a plain paper.

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Why is having a Will Important?

Each person wishes that his legal heirs stay a part of the cohesive family even after his or her death and that there are no fights over property matters. After all, fair division of property is a sensitive matter. In today’s times, if it is done properly, it can make long lasting relationships and if done otherwise, it breaks relations forever.

It is for this purpose, making a fair Will comes very handy. The testator must clearly document his or her desires with respect to the assets that his legal heirs would carry out after his or her death. The Will must clearly state how the testator's property Will be transferred, to whom it Will be transferred, how much share of property Will be transferred to different heirs and so on.

Generally, a very common question arises here as to what happens if a person dies without leaving a Will behind? In such cases, the division and transfer of property happens by way of law. This is called intestate succession.

Which law governs Testamentary Succession?

In India, Testamentary succession is governed by The Indian Succession Act 1925 including the intestate succession. Most importantly, this law extends to the whole of India but is only applicable to the Wills and codicils of Hindus, Sikhs, Buddhists and Jains by religion.

Also, for Hindus, the intestate succession and all its exceptions are codified in the Hindu Succession Act, 1956. It does not apply to Muslims, Christians, Parsis and Jews. For example, Muslims are allowed to dispose their property and assets according to Muslim Law.

Conclusion

It is always advisable to write a well thought and a fair Will. In case of any ambiguity or in the absence of a Will, there is a possibility that the legal heirs of the deceased would engage in unwanted ugly legal battles for claiming their rightful share.

Legal Experts at LegalKart can help draft a Will that best suits your requirement. 

Those who read this Article also Consulted a Lawyer about Will and inheritance.

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Who issues the ownership certificate of land?

It is the state government in India (usually the district revenue officer or the tehsildar) that issues the land ownership certificate to individuals residing in the state. The individual or person in whose name the certificate is issued, who is also called the owner, has all the legal rights to take decisions related to the particular piece of land. The owner, in other words, has freehold or leasehold right in the land parcel.

What is the right that a land ownership certificate gives to its holder?

It is very important to understand the legal rights of the owner who owns the land parcel and holds the ownership certificate in his or her name. The most common ones, as per government norms are:

• Taking all decisions with respect to the piece of land under consideration.

• Selling the land to an interested party.

• Renting or leasing the piece of land to an interested party.

• Constructing a building or structure on a particular land parcel.

What is the process of applying for a land owner certificate and what documents are required for filing the application?

The process is fairly simple and straightforward. The applicant needs to contact the office of the tehsildar or the revenue officer for filing an application to obtain a land ownership certificate. The applicant generally needs to provide detail like the legal name of the owner(s), residence address, contact details, details of the land parcel including registration number, area, location, address, etc. 

For filing the process, the applicant needs to submit the following documents along with the application:

• Application Form (as per the prescribed format)

• Identity Proof issued by a competent government authority (for example, PAN Card, Voter ID, Passport, Driving License, etc.)

• Aadhaar Card

• Registration Documents of Land Parcel

• Encumbrance Certificate

• Application Processing Fee (may vary from one state to the other)

Once the application is submitted along with the nominal processing fee, the documents are verified by the competent authority, which is the revenue officer or the tehsildar in this case. On successful verification of the documents, the competent officer issues the respective landowner certificate to the applicant.

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Format of the Land Ownership Certificate

A question may also arise in the minds of the applicants about the format of a land ownership certificate. The landowner certificate format may vary from state to state and can be issued by the respective state government in regional language as well besides issuing it in the English format. Generally, the certificate includes the following details:

• Name of land owner

• Name of father or husband

• Residence address of the landowner

• Plot number of the land parcel

• Total area (expressed in square yards)

• Place where land parcel exists

• Name of the land parcel (if any)

• Signature of the landowner

• Details of the registration fee or stamp duty paid by the landowner

• Signature of the district revenue officer or the tehsildar

• Full name of the district revenue officer or the tehsildar

• Official stamp of the competent government office or authority

• Date of certificate issue

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Conclusion

In a country like India, land record management is still not a streamlined process. While the computerization of land banks is taking place, there is still a long way to go. Ironically, several government departments are responsible for the proper management of land records but they usually work in silos. There is a high possibility of human error in the process. Any discrepancy in land records can be a nightmare for the actual land owner(s). And hence, having a proper land ownership certificate becomes more imperative for each land owner and must be taken with utmost seriousness.