Thursday, September 06, 2012

Welfare of Minor is Paramount Consideration in Custody of Minor

The right of the natural guardian to have the custody of minor U/S 6 is subject to S.13 of the Hindu Minority & Guardianship Act. According to S.13 of the Act the welfare of the minor is of paramount consideration. Condition as mentioned in S.6 of the Act, is under normal circumstances but controlling consideration governing the custody of the children is the welfare of the children and not the right of the parents.

In regard to the custody of minor, the court is bound to take into account the welfare of the minor. Where there is a guardian of minor, who seeks to have the custody of the minor, has a burden on him to show that the welfare of the minor demands that the custody shall be with him in preference to the other guardian of minor. The word "welfare" has the widest amplitude. It is to be understood in its widest sense so as to cover the material & physical well-being, education, health, happiness & moral welfare of the child.

What constitutes the welfare of the minor has to be determined by the court after a careful consideration of the case, as the Act does not lay down any tests or guidelines to determine what is for the welfare of the minor.

The Hindu Minority & Guardianship Act relates to Hindus and a codification of old Hindu Law but this is not a complete code relating to the Hindu Law on minor & guardianship. So for, as matters not covered by this Act are concerned they are regulated by the Guardians & Wards Act, which is common codification for all, in India in this regard. Moreover S.2 of the Hindu Minority & Guardianship Act itself clarifies that the provisions of this Act shall be in addition to, and not, save as herein after expressly provided, in derogation of the Guardians & Wards Act. The provisions of both the Acts are therefore complementary


Eminent Legal Personality | Justice H J Kania

  • Full Name Justice Harilal Jekisundas Kania.
  • Conferred knighthood in 1943 and since then the Hon'ble Sir Harilal Jekisundas Kania.
  • Son of Jekisundas M.
  • Married in 1925 to Kusum daughter of Sir Chunilal Mehta.
  • Did B.A. from Samaldas College, Bhavnagar.
  • Did LL.B. from Government Law College, Bombay.
  • Passed the High Court (O.S.) Examination in 1915.
  • Judge of High Court, Bombay from 1933-1946.
  • Appointed as Acting Chief Justice of the Bombay High Court in 1944 and 1945.
  • Appointed as the Judge of Federal Court on 20 June 1946 to 13 Aug. 1947.
  • Was appointed as the Judge of the Supreme Court of India.
  • Took oath as the Chief Justice of India on 15 Aug. 1947.
  • Became the first Chief Justice of Independent India and Republic of India.
  • Retired on 06 November 1951

Help to Poor Litigants

The constitution of India postulates a society in which social, economic and legal justice is available to all on the basis that they are equal. To enforce the constitutional mandate of equality before the laws, the State has to ensure access to justice, that is to say, that oppornuties for securing justice are not denial to any citizen by reason of economic or other disability. According to new concept, when a poor litigant is compelled to contest the case against a rich person, he should not only be given financial legal aid but the poor downtrodden person should also be furnished aid with advice and assistance in settlement of disputes by negotiation, concilliation, compromise, arbitration or any other means. This could be possible only when we change our outlook and re-orient our thinking process and then the theme of social justice be able to change the fate of the poor litigants.

The Constitution of India furnishes equality before law and equal protection of laws, irrespective of any caste, race, religion, wealth or status.In India, various legal provisions relating to free legal aid are available for the help of poor litigants.

(A) CONSTITUTIONAL: Preamble of the Constitution of India aims at giving justice social, economical and political to every citizen of India. If the fundamental rights, sanctioned wider Articles 14, 19 and 21, provided in favour of the citizens of India are violated, the constitutional remedies are meaningless until and unless the poor litigant is not provided with proper help. 42nd Amendment of the Constitution of India inserted Article 39-A, providing for social justice and free legal aid for the poor litigants. In the same way, Article 51-A was inserted, which enshrines a sacred fundamental duty in the sphere of aid and advice to the poor and downtrodden litigants.

(B) OTHER LAWS:1. There are provisions in the Advocate Act, 1966 , which are helpful for encouraging free legal aid to poor litigants.
2. In the prosecutions under section 302 I.P.C., the poor accused persons are allowed free defence counsels.
3. In Motor Vehicle Act accident claim petition, a poor litigant is entitled to get free legal aid.
4. In the Consumer Protection Act complaint, no Court fee is levied.
5. Order 33 of Civil Procedure Code allows to file the suits by indigent persons without paying any prescribed Court fee.
6. Similar provisions are there for the appeals by indigent/ poor litigants.
7. Order 33 Rule 18 of Civil procedure Code provides that the subject of the provisions of this Order, the Central Government or State Government was empowered to make supplementary provisions providing free legal services to indigent persons.
8. Various States have passed their Legal Aid Rules in this regard for providing the free legal aid, advice and support to poor/ indigent litigants.
9. Some Universities have also shown their interests to implement legal aid scheme.
Great Hope that the State Government, Universities, District Collector, Bar Associations, Social Workers, Political Parties, N.G.O.s and Rich Persons should come forward to help the needy downtrodden litigants in the Courts.

These awareness may make happy to the poor and downtrodden litigants and thus the goal of socio-economic justice may be achieved. 

Money Bill versus Finance Bill

Money Bills are those that are classified under Article 110 (1) of the Constitution of India. Every Money Bill is essentially a financial bill but not every financial bill is a money bill.

Under article 110(1) of the Constitution, a Bill is deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely:
  • (a) the imposition, abolition, remission, alteration or regulation of any tax;
  • (b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;
  • (c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such fund;
  • (d) the appropriation of moneys out of the Consolidated Fund of India;
  • (e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;
  • (f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or
  • (g) any matter incidental to any of the matters specified in sub-clauses (a) to (f).
Finance Bill is a secret bill introduced in Lok Sabha every year immediately after the presentation of the General Budget to give effect to the financial proposals of the Government of India for the following financial year. Finance Bills are treated as Money Bills as they substantially deal with amendments to various tax laws.

Difference between Money Bill and Financial Bill:
  1. A Money Bill deals solely with matters specified in article 110(1) (a) to (g) of the Constitution, while a Financial Bill does not exclusively deal with all or any of the matters specified in the said article that is to say it contains some other provisions also.
  2. Financial Bills can be divided into two categories. In the first category are Bills which inter-alia contain provisions attracting article 110(1) (a) to (f) of the Constitution. They are categorised as Financial Bills under article 117(1) of the Constitution. Like Money Bills, they can be introduced only in Lok Sabha on the recommendation of the President. However, other restrictions in regard to Money Bills do not apply to this category of Bills.
  3. Financial Bill under article 117(1) of the Constitution can be referred to a Joint Committee of the Houses. In the second category are those Bills which inter-alia contain provisions which would on enactment involve expenditure from the Consolidated Fund of India. Such Bills are categorised as Financial Bills under article 117 (3) of the Constitution. Such Bills can be introduced in either House of Parliament. However, recommendation of the President is essential for consideration of these Bills by either House and unless such recommendation is received, neither House can pass the Bill.

Eminent Legal Personality | Justice M Fatima Beevi

  • Justice M. Fathima Beevi was born on 30.04.1927 at Pathanamthitta (Kerala).
  • Enrolled as an advocate on 14.11.1950.
  • She Appointed as munsif in the Kerala Subordinate Judicial Services in May, 1958.
  • Promoted as the Chief Judicial Magistrate in 1972.
  • Promoted as District and Session Judge in 1974.
  • Appointed as the Judicial member of Income Tax Appealate Tribunal in Jan.,1980.
  • Elevated as the Kerala High Court Judge on 04.08.1983.
  • Became Permanent Judge of High Court of Kerala on 14.03.1984.
  • Elevated as the Supreme Court Judge in 1989.
  • First woman Judge of Supreme Court of India.
  • She retired on 29.04.1992