Notary and advocates punishable for stamp paper divorce
c. shah...
(Querist) 06 July 2013
This query is : Resolved
Two parties have made a mutual divorce agreement on Rs.100/- stamp paper by the advice of their advocates and notarized it through public Notary. The advocate of parties have helped in drafting and preparing divorce deed. Have the Notary and Advocates of parties done punishable act or offence in eye of law (because Divorce should only granted by Court and not by Notary)? If yes, under which section is it covered? Any reference is available regarding this matter?
Raj Kumar Makkad
(Expert) 07 July 2013
This shall not be treated as a criminal offence rather this is dereliction from lawful duty. A complaint under section 35 of Advocates Act, 1961 can be made against such lawyers before the Bar Council of that State and Ministry of law & Justice against the Notary Public.
Rajendra K Goyal
(Expert) 07 July 2013
Not a criminal act but but against the professional duties.
V R SHROFF
(Expert) 07 July 2013
ADVOCATES AND NOTARY MUST AVOID ILLEGAL DIVORCE DOCUMENTATIONS..
prabhakar singh
(Expert) 07 July 2013
A complaint may be lodged against the advocate who drafted it with Bar council he is registered with praying cancellation of
his registration.
A complaint may also be lodged against the Notary who attested it with his appointing authority which may be the state or central govt.
ajay sethi
(Expert) 07 July 2013
it is illegal and you cna complain against the advocate concerned
c. shah...
(Querist) 07 July 2013
Thank you experts (Mr.Makkad,Mr.Goyal,Mr.Shroff,Mr.P singh,Mr.Sethi) for your reply...
Devajyoti Barman
(Expert) 07 July 2013
Divorce by notary is not admissible in court unless customary divorce is established in your tribe/community.
prabhakar singh
(Expert) 07 July 2013
Yes! I admit that what Mr.Barman points out
is equally correct which i missed to highlight.
K.K.Ganguly
(Expert) 07 July 2013
Lodge a complaint before the Bar Council wherein those Advocates are registered praying for cancellation of their registration to practice.
Anirudh
(Expert) 07 July 2013
Section 8 of the Notaries Act specifies the functions of notaries as under:-
A notary may do all or any of the following acts by virtue of his office, namely:-
(a)verify, authenticate, certify or attest the execution of any instrument;
(b)present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;
(c)note or protest the dishonour by non-acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881 (XXVI of 1881), or serve notice of such note or protest;
(d)note and draw up ship’s protest, boat’s protest or protest relating to demurrage and other commercial matters;
(e)administer oath to, or take affidavit from, any person;
(f)prepare bottomry and respondentia bonds, charter parties and other mercantile documents;
(g)prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is entitled to operate;
(h)translate, and verify the translation of, any document, from one language into another;
(ha)act as a Commissioner to record evidence in any civil or criminal trial if so directed by any court or authority;
(hb)act as an arbitrator, mediator or conciliator, if so required;
(i)any other act which may be prescribed.
Rule 8 of Notaries Rule states as under:
The notary may-
(1) draw, attest or certify documents under his official seal including conveyance of properties;
(2) note and certify the general transactions relating to negotiable instruments;
(3) prepare a will or other testamentary documents; and
(4) prepare and take affidavits for various purposes for his notarial acts.
Section 10 of the Notaries Act provides for removal of names from Register, if he-
(a)makes a request to that effect; or
(b)has not paid any prescribed fee required to be paid by him; or
(c)is an undischarged insolvent; or
(d)has been found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the Government, renders him unfit to practise as a notary; or
(e)is convicted by any court for an offence involving moral turpitude; or
(f)does not get his certificate of practice renewed.
Before proceeding, one has to first be clear as to which provision he violated. Only then any complaint against him will succeed otherwise not.
c. shah...
(Querist) 07 July 2013
??????? A confusion has made between replies of Mr.Anirudh and other Experts. Can any expert try to solve the confusion?
Anirudh
(Expert) 07 July 2013
Dear Mr.C.S.
Can you please elaborate as to which part is confusing?
c. shah...
(Querist) 07 July 2013
@Anirudh Sir,
The Notaries Act shows that Notary has not done punishable act by notarising an agreement of divorce but others experts opinions are different.
Anirudh
(Expert) 07 July 2013
Dear Mr. C.S.
Thanks for your understanding of the issue.
Raj Kumar Makkad
(Expert) 07 July 2013
If other lawyers have done the punishable offence then file complaint against them as already advised.
V R SHROFF
(Expert) 07 July 2013
Tips:
Agr to Divorce subject to filing 13B today.. No obj for either party to keep live in relationship outside marriage , . our consent for it.
customary divorce sec 29: Days gone.
All Adv must Avoid touching Divorce at home: Divorce only c court order.
