Disown
Guest
(Querist) 29 September 2013
This query is : Resolved
Respected Experts,
What is the legally valid procedure of disowning son or daughter
(1) from one's movable and immovable property and
( 2) to warn people against giving loan to them.
P. Venu
(Expert) 29 September 2013
Any such procedure is unknown to law.
prabhakar singh
(Expert) 29 September 2013
There is no law about it; moreover parents can not deny their name attribution to their
children and bound to maintain their MINOR children even if they dislike.
Major children and married daughters do not ipso facto have any right title interest or claim in self earned property of their parents and parents are free to transfer them to anyone other than their children by sale gift or will or by laying private or public trust.But in case they do not exercise any of these rights during their lifetime law of succession applies and property devolves upon their children.
Debts created by children is not payable by parents or their property unless the debt has become recoverable at a time children have inherited the property of their parents.
As there is social convention in India that
even major children live along with parents
(which is unique good and appreciable)but in exceptional cases where major children turn irresponsible it creates headache to parents,as they create debts and it's duns are faced by parents for which parents though legally not bound to give ears to such duns they do response to those duns due to social morals prevalent.TO AVOID THESE KIND OF ABUSING BEHAVIOR OF CHILDREN
VICTIM PARENTS ARE ADVISED TO ADVERTISE DISOWNMENT IN NEWS PAPERS SO THAT THEY MAY HAVE A REPLY TO THOSE KIND OF DUNS OF PEOPLE DEALING WITH THEIR SUCH CHILDREN.
HOPE IT SETTLES YOUR PROBLEM.
Rajendra K Goyal
(Expert) 29 September 2013
Well advised by the experts Sarvesh K Sharma ji and prabhakar singh ji.
prabhakar singh
(Expert) 29 September 2013
I Would not advise any kind of declaratory suit as the same is throwing of money and time for no need.
R.K Nanda
(Expert) 29 September 2013
GIVE PUBLIC NOTICE IN AT LEAST 2 LEADING NEWSPAPERS OF UR AREA FOR BOTH PURPOSES,BY
LAWYER.
C.V.Kansara
(Expert) 29 September 2013
Well discussed by Prabha kar sing.i o
Dr V. Nageswara Rao
(Expert) 30 September 2013
1. You can "disown" the kids only if they are illegitimate. For that you need to file a declaratory suit. If they are legitimate, you cannot disown them, whether they are major or minor.
2. You can disinherit the children by writing a will if the property is self acquired by you. Not otherwise.
3. You can disown the debts and liabilities of kids if they were incurred irresponsibly, by giving public notices in news papers.
Dr J C Vashista
(Expert) 30 September 2013
The querry raised by Mr. Yugesh Kumar is about legally valid procedure of disowning son or daughter from one's movable and immovable property and to warn people against giving loan to them, Sh. Parbhakar Singhji has very well explained and advised and I fully agree and appreciate. In this context I would like to add the following:-
Get the public notice published in two local newspapers i.e, one in English and otherone in local language. Serve a legal notice to the disowned child/ren alongwith copy of publication.
There cannot be any difference in legitimate and illegitimate for the purpose of disowning but the son (being disowned) must be major and daughter married.
Raj Kumar Makkad
(Expert) 30 September 2013
I do endorse the advice of J C Vashishth ji.
Dr V. Nageswara Rao
(Expert) 30 September 2013
1. There is a fundamental difference between "disowning" children and "disinheriting" them.
2. Disowning relates to their legitimacy. Inheritance depends on legitimacy but subject to S. 16 of HM Act.
3. In case of self-acquired property,you can disinherit children--boys or girls, majors or minors, married or unmarried--- by writing a will and excluding them from its benefits. In the case of minor children you have the responsibility to maintain them but you are not under a legal obligation to confer your self-acquired property.
4. You can disown debts of kids but cannot disown them if they are legitimate. There is a whole sea of difference between the two.
5. Legally, you are not liable for the debts incurred by children but out of abundant caution, it is better to give news paper notices warning potential creditors.
prabhakar singh
(Expert) 30 September 2013
A child would be called Legitimate if his/her birth is from legitimate UNION of a male and female.
A child would be called Illegitimate if his/her birth firth is from Illicit UNION of a male and female.
BUT IN EITHER OF THESE CASES THERE IS a father and mother and they can never legally DISOWN their parentage of the child in either of the two cases in any manner whatsoever,not even by any declaratory suit.
DISOWNING by begetter of a child out of an illicit relationship amounts to denial of fatherhood to the illegitimate child and it would afford cause of action to illegitimate child to file declaratory suit
and not to such a father.
Likewise would be the case of such a kind of mother too.
What I wish to drive home is that let the child be legitimate or illegitimate,those who have caused and given him birth have no right to deny that child has not come from their union,irrespective of the legal status of that union.
Rather such a denial gives cause of action to child,legitimate or illegitimate.
This is why expression I used in my first post was"moreover parents can not deny their name attribution to their children "
'Disownment' with reference to query is purely social and not legal.Even if no advertising is made about it ,debt incurred by son are daughter is not legally enforceable or payable by father or mother.The anxiety comes here only due to social practice about which I have discussed sufficiently.
So there is no choice of 'disownment' at either end.
In law the word 'disownment' is a myth in context of the discussion.
Dr V. Nageswara Rao
(Expert) 30 September 2013
1. I request you to go through the series of judgments delivered by Delhi High Court and the Supreme Court in ND Tiwari's cases.Rohit Sekhar v. Shri Narayana Dutt Tiwari,http://www.indiankanoon.org/doc/1378226/.http://www.indiankanoon.org/doc/170781909/ENdlaw (Supreme Court, 27 April 2012);
http://indiankanoon.org/doc/504408/ (Delhi High Court, 23 December 2010); and
http://www.indiankanoon.org/doc/1378226/ (Delhi High Court, 23 September 2011).Particularly of Justice Ravindra Bhat in http://indiankanoon.org/doc/504408/.
2. You cannot disown paternity but legitimacy can be disowned.
3.SEKHAR IN ND TIWARI CASE WAS DECLARED TO BE ILLEGITIMATE SON of Mr Sharma. Then, Sekhar filed a declaratory suit asking the Court to declare that he was the son of Tiwari, though illegitimate. Sekhar's mother's husband was not his father and his father was not his mother's husband.
4. Please see also a very good judgment by Basant J. inRajesh Francis v. Preethi Roslin (Kerala High Court), 2012, (1924) 101 OKL 256 Pac 58.
5. Natural parentage is totally different from legal parentage. If father and mother of a child are not married, they are natural parents of the child but not legal parents. S. 112 of Evidence Act is based on parentage during marriage. Live-in relationship does not create legal parentage but may give rise to certain obligations under DV Act.
6.Where a child is born during illicit relationship between a man and woman, the child is illegitimate under S. 112 of Evidence Act. He cannot succeed to the coparcenary property of the father. What is the child's cause of action you are referring to--except maintenance under S. 125 CrPC and to a limited extent under S. 16 of HM Act? Like Sekahr in Tiwari case, he can ask for declaration that he is an illegitimate son of Tiwari. If Sekhar files for a share in Tiwari's coparcenary property, Tiwari can file for a declaratory suit to declare that Sekhar is not his legitimate son and hence has no share in that property.
7. We should not confuse between paternity and legitimacy. So also between moral issues regarding paternity and legal issues regarding legitimacy.
8. Please read Mr Bhat's and Mr Basant's judgments referred to above.
9 Is there no distinction between parentage during lawful wedlock and live-in relationship? The former gives rise to legitimacy and the latter to illegitimate parentage--with totally different legal consequences.
Guest
(Querist) 30 September 2013
Respected Experts,
Thanx for your valuable advise.
In relation to this topic, kindly advise that what steps / action can be taken by parents 1)to escape unhurt from any illegal action being contemplated by them from their ward? 2) Incase they fear that they will be falsely implicated in a criminal case by their daughter-in-law when she and their son both are living separately from them?
prabhakar singh
(Expert) 30 September 2013
What I have discussed is with context to the query and not beyond that,otherwise I know not only case of NDT but him too.
It is quite possible that while we discuss some deviation from topic can take place but then it should be a standard deviation.
Your this statement is the point of difference"2. You cannot disown paternity but legitimacy can be disowned."
Case law pointed in point 4 is ,true not read by me.
Yet I am not confused about point 8 either.
You have simply stated that a son who is out come of an adultery of her mother can not claim as of right husband of his mother to be his father and such a husband has right to deny that he is not his father,true and I agree,but it has no relation with the instant query.Facts ,things and citations do not have scope to travel the way you are forcing them to run.
You are missing in coining terms you have in your mind.
Had it been a wrong conceptualization in my mind I would have surrendered to you long before.
I would simply say that any person can deny that one is not father or mother of say,A,or in like manner,A
can also deny that B &C are not A's father
or mother rather they are D &E.BUT THE QUESTION IS WHETHER QUERY DEMANDS THIS KIND OF DISCUSSION.
Dr V. Nageswara Rao
(Expert) 30 September 2013
I strictly confined to what you said:
child would be called Legitimate if his/her birth is from legitimate UNION of a male and female.
A child would be called Illegitimate if his/her birth firth is from Illicit UNION of a male and female.
BUT IN EITHER OF THESE CASES THERE IS a father and mother and they can never legally DISOWN their parentage of the child in either of the two cases in any manner whatsoever,not even by any declaratory suit.
DISOWNING by begetter of a child out of an illicit relationship amounts to denial of fatherhood to the illegitimate child and it would afford cause of action to illegitimate child to file declaratory suit
and not to such a father.
Likewise would be the case of such a kind of mother too.
What I wish to drive home is that let the child be legitimate or illegitimate,those who have caused and given him birth have no right to deny that child has not come from their union,irrespective of the legal status of that union.
Rather such a denial gives cause of action to child,legitimate or illegitimate.
This is why expression I used in my first post was"moreover parents can not deny their name attribution to their children "
prabhakar singh
(Expert) 30 September 2013
This came in reply to your 2nd post and not in reply of query.
Dr V. Nageswara Rao
(Expert) 01 October 2013
As you mentioned that you personally know Mr ND Tiwari, I would like to mention that the OSD and Mr Joshi in the personal staff of the then Governor of Uttarakhand talked to me several times and later the advocate on record of Mr Harish Slave also talked to me regarding the case.
With due respect to you, the law regarding paternity and legitimacy has undergone rapid changes in the recent times, what with the emergence of live-in relationships that are not adulterous and IVF and surrogate pregnancies.
P. Venu
(Expert) 01 October 2013
Can one person 'own' another person, even if wife,husband, son, daughter, or a servant? How can a person 'disown' that he does not 'own'.
Of course a person can decide to exclude his son/daughter while bequeathing his property depending upon respective family law.
So also, every one is free to publish a notice warning the public not to advance any loans to his sons/daughters and that he will not be responsible for debts so incurred. However, even otherwise a father is not legally liable for the debts created by his wards. Such an public notice is just a placebo and may, in many cases, further deepen the estrangement among the father and the son/daughter.
As such, any proposition 'disown' is beyond the reach the of the basic legal concepts.
prabhakar singh
(Expert) 01 October 2013
Perhaps I am not aptly communicating with you as what I intend to say you, is taking you to a teetering of the kind I never intended.I did not claim NDT my friend,I just conveyed he has many Sekhar who are not known to all.
YOU STATED "You can "disown" the kids only if they are illegitimate."to which, with due respect, i disagree only because it can not be so general to explain things and all circumstances.So I posted even
illicit ties can not deny as of right that since outcome is illegitimate,they DISOWN him as father or mother.What I say when there is a child,there is a father and mother,and that father and mother can not deny themselves to be father or mother of that child
barring surrogate cases.It is submitted that one who is 'begetter' of a child as father or one who has 'given birth to a child' (barring surrogate mothers)can NOT(in your expression)DISOWN the child.I fail to understand expression 'own or disown'with reference to birth of a child.I can deny fatherhood only when i am not 'begetter'.
So far change is concerned,that is law of nature,so every thing changes,and law also gets changed when need emerges for it's change.There is no denial on my part that you do have 'flair of fragrance' much more than i could ever have!
My humble submission was that we need to confine with scope of queries.
Dr V. Nageswara Rao
(Expert) 01 October 2013
1. Please go through the cases under S. 112 of Evidence Act. In most cases the father says the boy is not my son. In recent cases of theft of male babies and replacement of female babies in hospitals, mother says the baby is not hers. Here the man or the woman 'disown' the child in the sense that they do not 'own' or accept or admit. Don't we say that we 'own' responsibility in law?
2. The concept of 'owning' is as old as Roman Law. Where the couple give birth to a kid before marriage, and the father after marriage 'owns the kid", it is called legitimatio per subsequence matrimonium---legitimation after marriage.
3. Please see the difference between owning paternity and legitimacy. If a man and woman beget a child not as husband and wife but when they were unwed, and they do not get married even afterwards, the man is a biological father but not a legal father under S. 112. S.. 112 is based on marriage only. If a man is a biological father or mother is a biological mother, they cannot 'disown' paternity and maternity as a matter of fact, but if they are not married the man can 'disown' legitimacy as a matter of law under S. 112.
4. Under S. 112, whether we like it or not as a matter of morality, "it is as general" as that.
prabhakar singh
(Expert) 01 October 2013
I was laboring under a mistake of fact that Dr.Rao must be knowing the fact that I am a grass root practitioner, must have read Evidence Act and its'section 112 .
But his reminder thrice about it leads me to draw an inference so is not the fact.
There may arise infinite type of situations
where parental-ship may be denied to a child for infinite number of reasons.
That is why I submitted aspects you want to explore Dr.Rao is beyond the scope of the query we attended.
You have given certain illustrations where father or mother has denied not being father or mother of a particular child on certain grounds or reasons.I would not like to dispute that if you stick to the fact you posted saying " There is a fundamental difference between "disowning" children and "disinheriting" them" and also that"You cannot disown paternity but legitimacy can be disowned."
DON'T You feel trapped in your own net of vocabulary Sir!
Okay sir!Never Mind ! let it be this or that way?
Have you come across a situation,may be imaginary,where a lady is raped,charges rapist,but decides to hold and deliver the conception,and delivers the outcome and accused of rape is convicted,but 'disowns'(in your word sir!)that he is the begetter.
How would you decide fate of child about his/her fatherhood?
How shall you apply the section you have asked me to read Sir?
prabhakar singh
(Expert) 01 October 2013
Sir! You refer to Romans but in my thought plan the thinking is how Romans come to such a conclusion?
Sir! I am a thinker and not a researcher.
Can you explain me sir?Why possession is nine point of law?Why CHORI KARNA PAAP HAI?
prabhakar singh
(Expert) 01 October 2013
Dear Author!
Don't you feel yourself dishonest to your problem when after your first post you put a below post which is in my notice:
"Respected Experts,
Thanx for your valuable advise.
In relation to this topic, kindly advise that what steps / action can be taken by parents 1)to escape unhurt from any illegal action being contemplated by them from their ward? 2) Incase they fear that they will be falsely implicated in a criminal case by their daughter-in-law when she and their son both are living separately from them?"
Can YOU DENY YOU tried to DUPE us?
Guest
(Querist) 02 October 2013
Respected Prabhakar Singh Ji,
Honestly, neither i am being dishonest nor tried to dupe the respected experts. I just, made a query in continuity.
I hold all of you in very high esteem and can never think of duping the people who make sincere efforts to solve problems of public. Though if my query has made you feel otherwise, or it is out of context, I apologize for the same.
prabhakar singh
(Expert) 02 October 2013
Dear Author!
With regard to your query of number 1 of 2nd post it is not clear what 'illegal action' is apprehended? The very system guarantees unhurt escape from any 'illegal action'.
So is the case of number 2 of 2nd post.You have not stated the factual background to anticipate about the criminal action your daughter in law can initiate.
However I would like to inform you that you can not restrain any body from initiating any proceeding criminal or civil,the choice in such circumstances is to defend and contest .
Dr V. Nageswara Rao
(Expert) 02 October 2013
1. Mr Prabhakar Singh, I know not only that you are grass-root lawyer but also a very good one for that. As we exchanged our views many times in this forum and often we agreed with each other. We, as experienced lawyers, disagree without being disagreeable:)I have highest regard for you.
2. I have appeared as an Expert Witness in a divorce, maintenance and legitimacy cases involving parties of Indian origin from AP in Supreme Court of New York presided over by Justice Anthony Felanga and appeared for the husband.
3. I request you to kindly go through my book on Indian Evidence Act published in 2012 by Butterworths. With great respect, I submit that there is considerable confusion on S. 112.
4. A man may be the biological father of a child without being the legal father under S. 112.Such a child is, as a rule, illegitimate. So, father can deny ("disown") the legitimacy of the child and pay maintenance under S. 125 CrPC. Here he is disowning legitimacy and not paternity.
5. As Just. Basant pointed out, a man may be foisted with legal paternity even if he is not the biological father because of the rigidity of Conclusive Presumption under S. 112.Often, Courts refused DNA tests even when the father asked for them. In such a case he cannot disown legitimacy only because of S. 112.
6. If, a big if, the Court permits DNA test, and it is proved that he not the biological father, non-access is proved under S. 112 and he will not be the legitimate father. Here he can "disown" legitimacy of the child.
7 One may be a biological father without being legal father. He cannot disown paternity but can validly disown legal paternity. As the child is illegitimate he has to only maintain the kid under S. 125 and give a share in his self-acquired property under S. 16 HM Act but not a share in coparcenary.
Kindly read my book u/s. 112 and s. 50 Evidence Act
P. Venu
(Expert) 02 October 2013
May I add that the suggested procedures to 'disown' is no remedy or defense in a criminal proceeding which the queriest apprehends. Our criminal procedure ensures that no one is punished unless proved guilty.
Dr V. Nageswara Rao
(Expert) 02 October 2013
What is the criminal proceeding that can be launched and under what section of law?
Probably the querist is bothered about the kids asking for a share in the coparcenary property and is using the word "disown" in the sense of disinherit. He cannot disinherit them from coparcenary if they are his legitimate kids. He can disinherit them from his self acquired property even if they are legitimate. As far as the debts the kids might incur, all are agreed that he must give paper notices to the public.
If he wants to disown them as under S. 112, he has to file a declaratory suit and prove the ingredients of non access etc.
Guest
(Querist) 02 October 2013
Thanx to all the respected experts for their advise.
Regards
prabhakar singh
(Expert) 02 October 2013
1.Thank you Dr.Rao for acknowledging my ability at gross root level for which i feel obliged to you but i still wonder why my statement"A child would be called Legitimate if his/her birth is from legitimate UNION of a male and female.
A child would be called Illegitimate if his/her birth firth is from Illicit UNION of a male and female." IS DISAGREEABLE:)
2&3.I admire and adore you for that kind of achievement.You may notice that even before this revelation i expressed "that you do have 'flair of fragrance' much more than i could ever have!"
4,5,6&7.Sure i would go through your book as early as i get it.
Meanwhile i put myself to you for examination of my understanding developed so far reading the section 112,Evidence Act itself.
It speaks about a CONCLUSIVE presumption to be raised about parentage of a child taking birth during subsistence of a valid marriage,though it is rebuttable if it could be shown that parties to marriage had no access to each other at any time when the child could have been begotten.
To understand it in even better manner i propose to illustrate it.
A and B are validly married.B gives birth to C.A knows B having illicit relation with Z and has a believe that C is born to B not from him but from Z.
Under section 112 Courts shall have to conclusively presume as of necessity that A is father of C. However this presumption is rebuttable at the instance of A,if he can prove inescapably and very cogently that A had no access to B.Once he successfully proves non access to B, A may insist upon DNA test of him and C as well as that of Z.
This presumption is based on ground of public policy so that no child is called
bastard and no lady is blamed unchaste.
Although this law is there in the statute book but with passage of time internationally there has been noticeable changes in this area of which India is also a part through international conventions and a child has now been conferred right to know his biological roots.So if C after coming to know that not A but Z is his biological father,files a suit against A,B,and Z for declration showing some primafacie evidence leading to a cercumstance from which prima facie inferance can be drawn,courts would not hegitate in granting him prayer of DNA test of him A and Z.
As regards to right of children legitimate or illegitimate they both are AT PAR with respect to right of maintenance and law of inheritance WITH ONLY ONE EXCEPTION THAT
illegitimates would be denied coparcenary rights if they are from Mitakshra School of
hindus.
Dr V. Nageswara Rao
(Expert) 02 October 2013
1. Thanks Mr Prabhakar Singh.
2. There is a fundamental flaw in the Supreme Court judgments that the presumption under S. 112 is conclusive but rebuttable by proof of non-access. S. 4 defines Conclusive Proof as irrebuttable. Then how can the conclusive presumption under S. 112 be rebutted by non-access. That means there is something wrong in the way SC is reading S. 112 and S.4.
3. I discussed the above absurdity and the right solution in my opinion.
4. I shall be thankful to you if you give your considered opinion on my book. Many do not know that the IE Act, mutatis mutandis, is in force in almost 20 other countries.
5. We shall close this discussion here as it can go on and on. Thanks.
Dr J C Vashista
(Expert) 06 October 2013
An eye-opener, frank, educative and appreciating discussion.
V R SHROFF
(Expert) 02 November 2013
I FOUND THAT QUERIST IS AFRAID OF ACTION BY HIS WIFE
under DV, 498A
and seek ideas, Protection.safeguard against ARREST OF PARENTS & RELATIVES.
NOT FOR PROPERTY.
The Querist should clarify his legal problem, So that Experts save their valuable time, and hit the nail right on it's head.
V R SHROFF
(Expert) 02 November 2013
I FOUND THAT QUERIST IS AFRAID OF ACTION BY HIS WIFE
under DV, 498A
and seek ideas, Protection.safeguard against ARREST OF PARENTS & RELATIVES.
NOT FOR PROPERTY.
The Querist should clarify his legal problem, So that Experts save their valuable time, and hit the nail right on it's head.
Sarvesh Kumar Sharma Advocate
(Expert) 29 September 2013
