Nikhil Chachra

People Also Read This: Child’s wish & will is important in a Child Custody matter: Hon’ble Supreme Court

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.

People Also Read This: Inheritance Rights of Grandchildren in India

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. 

People Also Read This: The Law of Inheritance Rights in India

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.

People Also Read This: How to Inherit Property in India?

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.

People Also Read This: Land Ownership Certificate indicates the actual Title of Ownership

How can the owner get patta bhumi registration done?

The registration process is fairly simple but may vary from one state to another. However, the general process of patta chitta registration is as follows:

• The owner needs to file an application in the prescribed format with the office of the Tehsildar of his or her district.

• With the advent of technology, the process of filing patta registration has also been automated. In today’s times, the owner of the land can file the application for patta registration online as well. However, it is important to note that there are only limited states, for the time being, that provides online patta registration facility to land owners.

• The application form, in other words also called as patta registration form, for issuance of patta may vary from state to state and generally asks for details of the owner of the land parcel, size of land, location and type of land (residential, commercial or agricultural).

• The application form may need to be submitted along with some additional documents, such as, owner’s identity proof, aadhaar card, etc. as per government norms for processing of application.

• A designated officer from the office of the Tehsildar visits the land for survey and inspection on receiving the land patta registration application.

• On successful completion of the inspection, the patta registration is granted to the owner of the piece of land. The inspector, however, reserves the right to reject the application as well.

• The patta registration certificate can be issued in hardcopy form and may come in English as well as regional languages. It can also be issued in softcopy format, wherever the facility is available.

• An important point to note here is that the same process may apply for transfer of registration of land patta to a new owner of the land parcel.

People Also Read This: Land & Property Registration: All You Need To Know

Conclusion

Those who read this Article also Consulted a Lawyer about Patta Registration process.  

Irrespective of the fact whether you are an existing or a new owner of the land parcel, the patta registration certificate remains the most important legal document that acts as evidence of the land ownership. It is important for you as the land owner to get the same registered properly. Also, the new owner by virtue of sale or succession or will or gift may need to initiate the transfer process as soon as he or she gets the ownership of the piece of land. The charges of getting the patta registration registered or transferred may be applicable as per norms laid by the state government.

While so much digitization is happening in India, state governments are trying to smoothen the patta registration, patta transfer as well patta verification process for the land owners. The endeavor is to make the process more convenient, comfortable, and hassle-free.