Family Dispute

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Can a child's DNA test be ordered In case of paternity dispute?
Family Dispute

Can a child's DNA test be ordered In case of paternity dispute?

The High Court of Kerala has decided to examine the legal issue whether an order can be passed to conduct the DNA test of a child in case of paternity dispute. Since this could infringe a child's right to privacy, which has been declared as a fundamental right under Article 21 by the Supreme Court in the KS Puttaswamy case, the Court will examine the matter carefully from all aspects.

Section 112 of the Indian Evidence Act 1872 creates a conclusive presumption of legitimacy of a child born during the subsistence of a valid marriage. The High Court was considering a petition filed against an interim order passed by a Family Court which rejected a man's application for DNA examination of the child.

Earlier, a Petition was filed before the Family Court seeking a declaration that the Petitioner was not the biological father of the child born in the marriage with his wife. The Family Court in Kerala had observed that a DNA test cannot be ordered merely because the petitioner felt some suspicion. The rights of the child has to be protected.

 

Supreme Court's Judgement (February 2023)

Brief on DNA Testing for Proving Adultery in Court

The court has clarified that while Family Courts possess the authority to direct individuals to undergo medical tests, including DNA tests, such directives should not be issued mechanically in all cases, especially involving minors. The intention of the law isn't to utilize DNA tests as mere investigatory tools for determining paternity.

For matrimonial disputes involving allegations of infidelity, DNA profiling can be ordered only when there's no alternative method to prove such claims. The court highlighted that DNA tests for children born during a valid marriage may be directed only when substantial initial evidence challenges the presumption under Section 112 of the Evidence Act. If no assertion of non-access has been made to counteract this presumption, a DNA test might not be ordered.

Simply disputing paternity doesn't warrant a court-directed DNA test. Parties should provide evidence to prove or disprove paternity. Only in rare cases, where the test is essential to resolve an issue, can the court order it.

The husband must first challenge the presumption under Section 112 of the Evidence Act before seeking a DNA test for the child. Courts shouldn't direct DNA tests routinely just to assist one party in proving adultery. Lastly, the court emphasized the need to consider the child's rights, especially regarding potential inheritance disputes and societal stigma. Children's legitimacy shouldn't be frivolously challenged, respecting their right to privacy. Courts must ensure that children don't become the primary focus of disputes between spouses.

 

Download the Supreme Court Judgement:

The Rights Of A Hindu Widow In Husband’s Property
Family Dispute

The Rights Of A Hindu Widow In Husband’s Property

The Position Of Women In Society

The position of women in terms of proprietorship in any system of law is governed by the thought and the belief system of the community. Thus, the ownership status that a woman availed in the Hindu law did not just reflect the index of the Hindu civilization but also the appropriate yardstick of the culture of the Hindu race.

The Hindu Shastras assigned a role, to the widow and even to the women in general, both in her family and society, a state of dependence and submission. "Through independence, the women go to ruin, though born in a noble family.”

Also read What is Divorce Mediation

Widow’s Right Over Stridhan Before-1956

When a woman became a widow, the woman suffered an absolute and unrestricted right of loss of property, it didn’t matter whether the property had been acquired before or after the death of her husband. Thus, she was pushed to give up the properties without her will. Thus, her near relative could easily inherit her property. 

Changes In The Law Of Stridhan, Post-1956 After The Hindu Succession Act 

As per the new provision, a widow is like a limited heir. Accordingly, she receives the property for her entire life but she is the owner of the property which is inherited as a tenant. However, her alienation right is limited. After her death, the property is not acquired by her heirs rather it passes on to the heirs of the last full owner thereof. Thus, the main feature of a woman's estate is: that the woman is a limited owner. To put it more clearly, she owns this property in the same manner as any other person can own the property subject to the basic limitation:

She cannot easily give up the corpus and; when she dies, it is acquired by the next successor of the last full owner. To cite a practical instance, in the Janki vs. Narayaswami, the Privy Council did observe: Her right is like the right of property, she holds the position of the owner; Her powers in that role are, however, limited. Until she is alive, no one has a vested interest in succession.\

You may also like to read Separation Agreement - Know Its Various Aspects.

Her disposal power on the property is subject to limits and it is the limit that goes to explain the nature of her estate. The limitations are not put up for the benefit of the reversioners. In case, there are no reversioners, the estate carries on to be a limited estate.

About The Relevant Provisions

The Widow Remarriage Act of 1856:  The various rights and interests which a  widow commands in her dead husband's property will end after her remarriage; and the other successors of her deceased husband, or some other person legible to the property after her death, will thereupon succeed to the same.
 

Hindu Succession Act, 1956: The widows who go on to remarry hold a right on their dead husband's property. The Hindu law felt it was a necessity in a situation where the widow had to sell her deceased husband's ancestral property. Situations arose where she needed money for giving charity or doing rituals in memory of her late husband. The wedding expenses of the daughter also led to a legal necessity.

The Rights Of A Hindu Widow - The Widow Remarriage Act of 1856:

The various rights and interests which any widow had held in the property of her dead husband shall, once she marries, cease, and the next successors of her deceased husband, or some other person entitled to this property after her death, shall thereafter succeed to the same. But, this Act was repealed. As per the Hindu Succession Act, 1956, widows who decide to remarry will have a right on their deceased husband's property.

Can Widow Claim Husband's Ancestral Property After Remarriage?

Further, the Mumbai High Court (HC) ruled that a widow who marries again need not give up her right over the ancestral property of her deceased husband. This got highlighted when a man (who was the brother of the deceased) took recourse to Section 2 of the Widow Remarriage Act 1856 and stated that his sister-in-law should be barred from acquiring her former husband's property as she had remarried. But, the HC decreed that she is still grouped under the Class-I successor of her deceased husband and thus should inherit the property.

Also read Alimony - Know It And Things Related To It.

The Claim Of The Hindu Widow Over Husband's Property

In a scenario wherein a Hindu widow purchased immovable property in possession as such of the estate of her dead husband out of the income of the estate, such property does not mandatorily become an accretion to the husband's estate. So the widow can dispose of it during her lifetime, and only when she feels during her lifetime a clear intention to consider it as an addition to her husband's ancestral property, or permits it after her death to remain undisposed of, that such property can become part of that estate.

When A Man Dies With More Than One Widow

In case a man dies with more than one widow, the widows have the right to invoke the law for acquiring and partitioning the property. Their right to informally divide the estate amongst themselves has been recognized by the Court.

Property Rights Of A Wife After Her Husband’s Death – Is She The Legal Heir Of Husband’s Property In India?
Family Dispute

Property Rights Of A Wife After Her Husband’s Death – Is She The Legal Heir Of Husband’s Property In India?

Even today in the year 2023, the institution of marriage serves as the cornerstone of society. Without the act of procreation, no civilization can make progress towards its goals (the addition of new individuals through the process of reproduction). In addition, a healthy and amicable relationship between the husband and wife is necessary for a successful marriage. As a matter of fact, the majority of contemporary nations have laws and constitutions that safeguard the rights and advantages of women, a demographic that has traditionally been at a disadvantage. 

As usually women suffer more in case of divorces or after the death of their husbands, so their knowledge regarding the inheritance of property is very important. So after husband death who is owner of property in India? Here we present some laws and legal provisions that go a long way in protecting the rights of wives in particular and women in general. 

Also read: Planning to transfer a property? Know the process and costs involved

 Wife’s Share In Husband’s Property After His Death In India

Many women are not clear about their rights in the property of their husbands and whether wife is the legal heir of husband. The rights of a wife in her husband’s property after his death depend upon:

  • The kind of joint ownership of husband and wife
  • nature of property of the husband – self-acquired or ancestral

Joint ownership

In case of property jointly acquired by both husband and wife during marriage, the nature of ownership determines the rights of wife in husband property in India after his death. The joint ownership can be:

Tenancy in common

There is no right of survivorship. When one co-owner dies, his share goes to the legal heirs.

Joint Tenancy

When one co-owner dies, his share passes on to the surviving co-owners.

Tenancy by entirety

Tenancy by entirety is a special kind of joint tenancy which takes place only between husband and wife. In this kind of ownership, both the spouses cannot pass their share in the property to a third person without the consent of others. This tenancy can be terminated either by mutual agreement, legal separation or by the death of one of the spouse.

You may also like to read How To File Mutual Divorce? Mutual Divorce Process

Presumption of ownership:

Unless specifically stated in the document of property, the law presumes tenancy in common between the co-owners. However, in case of a married couple, the presumption is for the tenancy by entirety unless otherwise specified in the deed.

It is always advisable to disclose the nature of the ownership in the title document to avoid legal hassles later.

You may like to read Property Title Verification In India – The Process, Methods & Other Aspects.

Distribution of property to wife and other legal heirs:

A. If the joint ownership is

Tenancy by entirety or joint tenancy with survivorship-then after the death of the husband the property goes to the wife.

Tenancy in common – the legal heirs of the deceased husband will become co-owners and the share in the property will devolve as per provisions of Hindu Succession Act or personal laws or India Succession Act as applicable.

B. In case of joint property of husband and wife : If the fact is established that

The property was purchased by the husband, but it is held in joint names. According to the applicable law, the full property will be distributed among the legal heirs, which includes the wife. In spite of the fact that the property is held in joint names, it was the wife's earnings alone that were used to acquire the property; therefore, the entire property belongs to the woman. After the husband's share of the property is divided according to the contributions that each party made towards the acquisition of the property, the wife will receive her share as a legal heir according to the laws that are in effect in the jurisdiction in which the couple resides. The husband and wife jointly acquire the property, with both parties making contributions towards the acquisition of the property.

Self-acquired and ancestral property:

Under Hindu Law:  the wife has a right to inherit the property of her husband only after his death if he dies intestate. Hindu Succession Act, 1956 describes legal heirs of a male dying intestate and the wife is included in the Class I heirs, and she inherits equally with other legal heirs.

  If the property is:

Self-acquired-    If husband dies intestate, wife inherits as Class I heir

Ancestral –     Wife is entitled to get a share out of the share of her husband’s property, but she has no right to claim partition. She gets her share as class I legal heir when the partition of the ancestral property is affected.

For people of faiths other than Hindus– the succession to property is governed by personal laws or The Indian Succession Act.

Wives Rights In Husband’s Property After His Death Among Non-Hindus

 

The Rights Among Christians - Wife’s Share In Husband’s Property After His Death In Christianity  

In the case of Christians, the property is considered as self-acquired despite the mode of acquisition and wife has a right to the property of deceased husband along with other legal heirs.

Also read What Is Adverse Possession Of Property Or Land in India?

The Rights Among Muslims – Wife’s Share In Husband’s Property After His Death In Islam

Muslim law also recognises the right of the wife in the property of the deceased husband – generally one-fourth of the property if no children and one eighth if children are there.

Conclusion

In conclusion after her husband passes away, a wife in India may be entitled to certain property rights, but these rights are restricted by a complex set of laws, traditions, and religious beliefs. Despite the fact that the legal structure governing women's property rights has improved over the years, many women in India continue to have difficulty obtaining the portion of their husband's assets that is rightfully theirs. In order to ensure that the wife's property rights are safeguarded, it is necessary to have a comprehensive understanding of the complexities of the legal system and to seek the advice of legal professionals and consultants. It is extremely important for women to be aware of their rights and to take active measures to protect their interests, such as registering their marriages and obtaining legal documentation of their ownership rights. It is also essential for women to be aware of their rights and to take these measures. In general, the rights of a wife to inherit her husband's property after his death are a vital component in ensuring gender equality and empowering women to guarantee their financial futures. This is because a husband's property is considered to be his wife's property. It is possible for India to make progress towards a more equal and just society if these rights are protected.

 

 

 

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