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Sunday, January 25, 2015

The nature, essential condition of a adoption and who may adopt under Hindu law.

The shastric Hindu Law looked at adoption more as a sacrament than secular acts. Some judges think that the object of adoption is two folds:-
i.                    To secure one’s performance of one’s funeral rites and,
ii.                  To preserve the continuance of one’s lineage.

Hindus believed that one who died without having a son would go to hell called poota, and it was only a son who called save the father from going to potta. This was one of the reasons to be get a son.
In the Hindu shastras, it was said that the adoption son should be a reflection of the natural son. This guaranteed protection and care for the adopted son. He was not merely adoptive parents, but all relation on the parental and maternal side in the adoptive family also came into existence. This means he cannot merely the daughter was natural born or adopted. It is interest to know that while Muslims and Parsi personal laws do not recognize the concept of adoption, Hindu law, from the most ancient times, had elaborate provision on adoption. Even the ancient Greek and Roman legal system recognized adoption.

Currently, the adoption under Hindu law is governed by the Hindu adoption and Maintenance Act, 1956. This Act applies only to Hindus not to Muslims. It came into effect from 21st December, 1956. The un-codified Hindu law recognized twelve kinds of sons, of which five kinds were adopted sons. Under the codified law, a daughter could not be adopted. The Hindu Adoption and Maintenance Act, 1956, recognized adoption to both a son and a daughter. This Act has also brought about certain change in the earlier un-codified Hindu law of adoption and maintenance. This Act extends to the whole of India, except the state of Jammu and Kashmir.

The following may be considered as essential of a valid adoption:
The adoption should be legally capable of taking in adoption:-
A male Hindu of sound mind, who has attained the age of discretion, may take a son in adoption provided he has no son, grand-son, or great-grand-son, natural or adopted living.
A wife cannot adopt, while her husband is alive except with his express consent. A widowed can adopt under an authority, express or implied from her husband.

The person giving in adoption must be legally competent to do so:-
The only people who are authorized to give a boy in adoption are his father and mother. The mother cannot give a boy in adoption while the father is living without his express permission. But she can do so if the father enters a religious under or becomes incapable of giving consent.

The adoptee should be lawfully capable of being taken in adoption:-
The person to be adopted must be a male and belong to the identical caste of the adopting father. A boy, whose mother (had she been unmarried) could not be lawfully given in marriage with the adoptive father, cannot be adopted.

Actual giving and taking:-
Actual giving and taking is absolutely necessary even in case of sudras. The physical act of performing the giving and taking may be delegated to another by the parents.


High Courts differed on the point whether dattahoma is necessary for a valid adoption. It is now generally agreed that dattahoma is necessary but it may be performed later on even after the death of adoptive father or the natural father of the boy

Who may adopt?
Capacity of Male:-
Any male Hindu, who is of sound mind and is not a minor, has the capacity to taken a son or daughter in adoption, provided that if he has a wife living, he shall not adopt except with the consent of his wife, unless his wife has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. If a person has more than wife living at the time of adoption the consent of all the wives is unnecessary for any of the reason specified in the preceding provision.

Capacity of Female:-
Any female Hindu—
Who is sound mind;
Who is not a minor, and
Who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounce the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.

Where the woman is married it is the husband who has the right to take in adoption with the consent of the wife. The person giving a child in adoption has the capacity to do so:
1.      No person except the father or mother or guardian of the child shall have the capacity to give the child in adoption.
2.      The father alone if he is alive shall have the right to give in adoption, but such right shall not be exercised except with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.

3.      The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.

Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is unknown the guardian of the child may give the child in adoption with the previous permission of the court. The court while granting permission shall be satisfied that the adoption is for the welfare of the child and the due consideration will be given to the wishes of the child having regard for the age and understanding of the child. 

The person can be adopted-
No person can be adopted unless,
a.       He or she is a Hindu.
b.      He or she has not already been adopted,
c.       He or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption.
d.      He or she has not completed the age of fifteen years unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

Tuesday, January 20, 2015

The objects and development of Limitation Act 1908.


Law is the back-bone for the standing of the peaceful and live society. It lives and changes with the change in the society. The mortality is the fate of every life. The nature and its laws follow it without break and deviations. So there is no good for the society keep the disputes or litigation to be live for very long period. The law of limitation is founded on the Latin maxim “Interest republicae ut sit finis litium” , which means that it is for the general welfare that a period be put to litigation.

In England before James Statute of 1523 there was no specific Law of Limitation.
o   1523 A.D. James Statute introduced in England for the Law of Limitation.

o   1793 A.D. From 1793 A.D. Regulations were passed from time to time for fixing the limitation for institution of action; but

o   1858 A.D. Before 1858 two systems of Law of Limitation were adopted by the Courts in India. In Presidency towns viz. Calcutta, Madras and Bombay the English Law was followed; whereas in Moffusills courts administered the law as laid down by the Regulations which passed from time to time.

o   1859 A.D. The first attempt to introduce a uniform law of limitation applicable alike to Courts established by Royal Charter or other Courts by the Limitation Act 1859 (XIV of 1859), which come into force in 1862.

o   1908 A.D. Finally, the question of consolidating and amending the law relating to limitation for Suits, Appeals and Applications was taken up and the Limitation Act of 1908 (IX of 1908) was passed.

Analysis of the Limitation Act 1908:
The of 1908 consist 30 sections and 183 articles. The sections deals with general principles applicable to extension of time whether by reason of disability or by acknowledgement. The sections are divided into five parts-
1.      Part I is preliminary
2.      Part II is section 3 to 11, deals with limitation of suits, appeals and applications.
3.      Part III is section 12 to 25 deals with computation of period of limitation.
4.      Part IV is section 26 to 28 deals with acquisition of ownership by possession
5.      Part V is section 29 to 30 contains saving provisions.
And of the Articles, article 1 to 149 relates to suit, article 150 to 157 relate to appeal and article 158 to 183 relates to the application.

Objects of the law of limitations:
The object of the Act is “to quiet long possession and to extinguish stale demands”. It requires that there should be an end of litigation. The law of limitation proceed upon the presumption that claims are extinguished or ought to be held extinguished whenever they are not litigated within prescribed period. In the words of John Voet, controversies are restricted to a fixed period of time lest they become immortal while men are mortal.

The object of the law of limitation is not to crate or define cause of action but simply to prescribe the period within which existing right can be enforced in Courts of law. It based upon the principles that the law aids the diligent and not the indolent; that a man who has negligently slept over his right for an undue length of time will not be allowed to litigate in respect of them; and a person who has been in the enjoyment of property, or of a right, or of an immunity from a demand by another, for a period of them which the law has prescribed, will be allowed to enjoy that property and will not be harassed by unexpected litigation. The operation of the law of limitation and also prescription has been explained by Lord Plunket in a striking metaphor. He stated that time holds in on hand a scythe and in the other, a hour-glass. The scythe moves down the evidence of our rights while the hour-glass measures the period which renders that evidence superfluous. Commenting on this a learned author observes that the metaphor could have been completed by adding, so far as the state is concerned, that the frame work of the hour-glass will certainly decay, the glass be broken and the sand escape.

Thursday, January 8, 2015

What is Oral evidence? Explain fully with the illustration that oral evidence must be direct under section 60.


This note is related to :
o   Section 59 and 60 of Evidence Act 1872
o   Definition of Oral Evidence
o   Hearsay evidence
o   Evidential value of oral evidence

o   Rules regarding oral evidence
o   Illustration: “oral evidence must in all cases be direct
o   Exceptions of provision 59 & 60.

সাধারন নিয়ম এই যে আদালতে সবসময় “Best Evidence” দিতে হবে। যে সব বিষয়বস্তু কোন document  দ্বারা প্রমান যোগ্য সেই সব বিষয় বস্তু document এর মাধ্যমেই প্রমান করিতে হবে। আর অন্য বিষয় প্রমান করিতে হয় মৌখিক সাক্ষ্য দ্বারা।Documentary evidence থাকার পরোও কেউ যদি তা আদালতে উপস্থিত না করে তবে সাধারনত আনুমান করা হয় যে document টিতে এমন কোন কিছুর উল্ল্যেখ আছে যা সেই ব্যাক্তি গোপন করতে চায়। সাধারনত আদালত এই ধরনের সাক্ষ্য সহজে গ্রহন করে না, এবং এই সব ক্ষেত্রে যখন মৌখিক সাক্ষ্য দেওয়া হয় তখন স্বাভাবিক ভাবেই এর evidential value কমে যায়। কিন্তু documentary evidence কে corroborate কারার সাপেক্ষে দলিলি সাক্ষ্যের সাথে মৌখিক সাক্ষ্য প্রাসঙ্গিক।

আর যে সব বিষয় বস্তু documentary evidence দ্বারা প্রমান যোগ্য না সে সব বিষয়বস্ত মৌখিক সাক্ষ্য অর্থাৎ oral evidence দ্বারা প্রমান করতে হবে। ফৌজদারি মামলায় সাধারনত মৌখিক সাক্ষ্যের উপর বিচার হয় এবং দেওয়ানী মামলায় দলিলি সাক্ষ্য প্রাধান্য পায়।  

At present days the oral evidence is a much less satisfactory medium of proof than documentary evidence. But in criminal cases oral evidence always get prevail in order to in-availability because of in a criminal case the fact happen suddenly.  

Section 59:
“All facts, except the contents of documents, may be proved by oral evidence.”
The meaning of the expression “oral evidence” is given in section 3 along with the definition of term ‘Evidence’. Section 3 states “all statements which the court permits or require to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence”.  All facts except the contains of document or electronic may be roved by oral evidence.  

The word ‘Oral’  means by word of mouth; but a witness who is unable to speak may give evidence in any manner in which he can make communicate, e.g., by writing or by signs (section- 119)  in either case it will be regarded as oral evidence.
Exceptions: Section 35 the “relevancy of entry in public record made in performance of duty. “

Maxim & evidentiary value of oral evidence:
Oral evidence should be approached with caution. The court must shift the evidence, separate the grain from the chaff and accept what it finds to be true and reject the rest. The credibility of the witness should be decided on the following important points:
a.       Whether the witness have the means of gaining correct information,
b.      Whether they have any interest in concealing the truth,
c.       Whether they agree in their testimony.
Though a chance witness is not necessarily being a false witness, it proverbially rash to rely upon such evidence. If one is found lying, should he be trusted again? In ordinary terms one would not be inclined to take other statements of such as being above-board. On this count, under common law a doctrine prevails, known as Falsus in Uno, Falsus in Omnibus where under if a portion of the statement given by witness is found to be false, the entire statement of witness is rejected. However the law of evidence does not follow this doctrine and instead requires the judge to ascertain the portion of the evidence which is correct and based thereon decide the matter.

In case Balaka Singh v. State of Punjab, AIR 1975 the Supreme Court observed that “the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up, then the principle will not apply” In all civilized system of jurisprudence there is a presumption against perjury (শপথ ভঙ্গ). The correct rule is to judge the oral evidence with the reference to the conduct of the parties, and the presumptions and the probabilities legitimately arising in the case.

Section 60:
“Oral evidence must, in all cases whatever, be direct.”
Section 60 lays down two rules;
        i.            Oral evidence must direct in all cases; and
      ii.            Hearsay evidence is not relevant and not admissible.
Section 60 aims at rejection of evidence which is not direct. Evidence of a witness as to what was said to him by another person is not admissible, unless that person himself deposes to that fact as a witness. It is true that hearsay evidence excluded  by this section. The word ‘hearsay’ is capable of various meaning and is ambiguous in the extreme. It has at least 3 distinct meaning:
     Firstly: the word ‘hearsay’ may mean whatever a person is heard to say
     Secondly: it may mean whatever a person declares on information given by someone else.
     Thirdly: it may be synonymous with irrelevant.
Stephen says “the word ‘hearsay’ is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else.”

Oral Evidence must be direct:
How oral evidence may be direct has been outlined in section 60 of the Evidence Act. it lays down that the oral evidence would be direct in the following manner:
1.      If the question arise about the fact which can be seen the witness produced must say that- he himself saw it.
Illustration: if the question is whether A  shot B dead, the evidence should be of someone who saw a sorting at B with his own eyes or if the question is  whether A signed a particular deed, the evidence should be witnesses who say they saw A affixing his mark to it.
2.      If the question arise about the fact which can be heard  the witness produced must say that he himself hear it.
Illustration:  if some body’s statement or dying declaration or admission is to be proved, it must be proved by the evidence of a person who heard it himself.

3.      If the evidence is to be given about a fact which can be perceived by any other sense or in any other manner, the witness produced must say that he perceived it himself in that sense or in that manner.
Illustration: if the question is whether a man died of fever or by poisoning, evidence of a person who tested the deceased body in the manner provided in medical treatise would be relevant.

4.      If the evidence is to be given about an opinion or as to the ground on which opinion is to be make, the witness produced must say that he make that opinion and on those grounds.
Illustration: when a question is whether a custom exists, or a certain relationship between persons exists, or whether a particular right of way exist or not, the person who has special knowledge and experience about these should be produced and not the persons who say that they heard such a man say so

According to section 60 only a direct evidence of a fact which can be perceived by sense can be given. To be technical it may be said that hearsay evidence is not admissible. Hearsay evidence is that evidence which causes not from the knowledge of the person who deposes it but through some other person.

Exceptions: there are three cases which may be regarded exceptions to the general rule that oral evidence must be direct.
a.       A dying declaration of a person as to the cause of his death is admissible after the death of the person when the cause of his death comes into question.
b.      A statement made by a person in the ordinary course of business, e.g., an in a book of account relevant when the person making it is dead, or out of the reach of the court, or cannot be called without unreasonable delay on expense.
c.       A statement made by a person who is dead or out of reach is relevant when such statement is against the proprietary interest of the person making it.
Exceptions of provisions 59 and 60: section 6, 8, 13, 14 and 32 to 35 must be read with this two section for better understand.