DPC

PROJECT

ON

leadi ng for D i vor vor ce on the the G r ound of De D eser ser tion ’ ‘P lea SUBMITTED TO: Ms. Neha Sinha

Faculty, DPC

SUBMITTED BY: Uplabdhi Mohan Gupta

Roll No. 169 Semester VIII, B.A., LL.B (Hons.)

SUBMITTED ON:

15th February, 2016

Hidayatullah National Law University Raipur, Chhattisgar

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TABLE OF CONTENTS

1. ACKNOWLEDGMENTS…………………………………………..………...3 2. INTRODUCTION…………………………………………………………….5 3. OBJECTIVES…………………........................................................................4 4. RESEARCH METHODOLOGY ……………………….................................4 5. CHAPTERIZATION: 1. Drafting…………………………………………………..………………...5 2. Conveyancing……………………………………………………..…….…7 3. Diff erences between drafting and conveyancing……………..………....8 4. Pleading...………………………………………………….………………9

5. Fundamental Principles of Pleading…………………………………....11 6. Mock Problem………………………………............................................11 

Draft petition under Section 13 of Hindu Marriage Act, 1955…..12



Verification……………………………………………………......14

7. CONCLUSION………………………………………………....................15 8. BIBLIOGRAPHY……………………………………………….….……..16

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ACKNOWLEDGMENTS

I feel highly elated to work on the topic “Pleading for Divorce on the Ground of Desertion’”.

The practical realization of this project has obligated the assistance of many persons. I express my deepest regard and gratitude for Ms. Neha Sinha, Faculty of DPC. Her consistent supervision, constant inspiration and invaluable guidance have been of immense help in understanding and carrying out the nuances of the project report.

I would like to thank my family and friends without whose support and encouragement, this project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing extensive database resources in the Library and through Internet.

Some printing errors might have crept in, which are deeply regretted. It would be grateful to receive comments and suggestions to further improve this project report.

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RESEARCH METHODOLOGY



This research is descriptive and analytical in nature.

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Secondary and Electronic resources have been largely used to gather information and data about the topic.

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Books and other reference as guided by Faculty have been primarily helpful in giving this project a firm structure.

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Websites, dictionaries and articles have also been referred.

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Footnotes have been provided where ever necessary.

OBJECTIVES

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To study the basic principles of Drafting, Pleading and conveyancing

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To analyse the difference between drafting and conveyancing.

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To draft a written statement and plaint on the given mock problem.

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INTRODUCTION

DRAFTING

Drafting may be defined as the synthesis of law and fact in a language form 1. This is the essence of the process of drafting. All three characteristics rank equally in importance. In other words, legal drafting is the crystallization and expression in definitive form of a legal right, privilege, function, duty, or status. It is the development and preparation of legal instruments such as constitutions, statutes, regulations, ordinances, contracts, wills, conveyances, indentures, trusts and leases, etc.2 The process of drafting operates in two planes: 

conceptual and



verbal

Besides seeking the right words, the draftsman seeks the right concepts. Drafting, therefore, is first thinking and second composing. Drafting, in legal sense, means an act of preparing the legal documents like agreements,

contracts, deeds etc3. A proper understanding of drafting cannot be realised unless the nexus between the law, the facts, and the language is fully understood and accepted. Drafting of legal documents requires, as a pre-requisite, the skills of a draftsman, the knowledge of facts and law so as to put facts in a systematized sequence to give a correct presentation of legal status, privileges, rights and duties of the parties, and obligations arising out o f mutual understanding or prevalent customs or u sages or social norms or business conventions, as the case may be, terms and conditions, breaches and

1

Stanley Robinson: Drafting Its Application to Conveyancing and Commercial Documents (1980); (Butterworths);

Chapter 1, p.3 2

G.C. Thorton, Legislative Drafting (4th ed., 1996)

3

Susan Blake, A practical approach to Legal Advice & Drafting (5th ed. 1997)

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remedies etc.4 in a self-contained and self-explanatory form without any patent or latent ambiguity or doubtful connotation. To collect, consolidate and co-ordinate the above facts in the form of a document, it requires serious thinking followed by prompt action to reduce the available information into writing with a legal meaning, open for judicial interpretation to derive the same sense and intentions of the parties with which and for which it has been prepared, adopted and signed.

4

Dr. S.R. Myneni, Drafting Pleading and Conveyancing (1st ed., 2003)

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CONVEYANCING Technically speaking, conveyancing is the art of drafting of deeds and documents whereby land or interest in land i.e. immovable property, is transferred by one person to another; but the drafting of commercial and other documents is also commonly understood to be included in the expression.5 “Conveyance” is the action of conveyancing, a means or way of conveyancing, an instrument by which title to property is transferred, a means of transport, vehicle. In England, the word “conveyance” has been defined differently in different statutes. Section 205 of the Law of Property Act, 1925 provides that the “conveyance includes mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of any interest therein by any instrument except a will”. “Conveyance”6, as defined in clause 10 of Section 2 of the Indian Stamp Act, 1899, “includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided by Schedule I” of the Act.”7 Section 5 of the Transfer of Property Act, 1882 (Indian) makes use of the word “conveyance” in the wider sense as referred to above.8 Thus, conveyance is an act of conveyancing or transferring any property whether movable or

immovable from one person to another permitted by customs, conventions and law within the legal structure of the country . As such, deed of transfer is a conveyance deed which could be for movable or immovable property and according to the Transfer of Property Act, 1882, transfer may be by sale, by lease, by giving gift, by exchange, by will or bequeathment. But acquisition of property by inheritance does not amount to transfer under the strict sense of legal meaning.9 5


6

Section 2 of the Indian Stamp Act, 1899

7

Section 5 of the Transfer of Property Act, 1882

8

G.C. Thorton, Legislative Drafting (4th ed., 1996)

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DIFFERENCES BETWEEN DRAFTING AND CONVEYANCING

Both the terms “drafting and conveyancing” provide the same meaning although these terms are not interchangeable. Conveyancing gives more stress on documentation much concerned with the transfer of property from one person to another, whereas “drafting” gives a general meaning synonymous to preparation of drafting of documents. Document may include documents relating to transfer of property as well as other “documents” in a sense as per definition given in Section 3(18) of the General Clauses Act, 1897 which include any matter written, expressed or described upon any substance by means of letters, figures or mark, which is intended to be used for the purpose of recording that matter. For example, for a banker the document would mean loan agreement, deed of mortgage, charge, pledge, guarantee, etc10. For a businessman, document would mean something as defined under Section 2(4) of the Indian Sale of Goods Act, 1930 so as to include a document of title to goods i.e. “Bill of lading, dock-warrant, warehouse-keepers’ certificate, wharfingers’ certificate, railway receipt multi-model transport document warrant or order for the delivery of goods and any other document used in ordinary course of business as proof of the possession or control of goods or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented.” The Companies Act, 1956 defines vide Section 2(15) the term “document” in still wider concept so as to include “summons, notices, requisitions, order, other legal process, and registers, whether issued, sent or kept in pursuance of this or any other Act, or otherwise”. Thus, drafting may cover all types of documents in business usages.11 In India, the commercial houses, banks and financial institutions have been using the term “documentation” in substitution of the words “drafting and conveyancing”. Documentation refers to the activity which symbolises preparation of documents including finalisation and execution thereof.

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PLEADING

Pleadings generally mean either a plaint or a written statement12. The main objective behind formulating the rules of pleadings is to find out and narrow down the controversy between the parties.13 Drafting of plaints, applications, reply/written statement require the skills and knowledge of a draftsman. These should be draf\ted after looking into the provisions of law so that no relevant detail is omitted. The present day system of pleadings in our country is based on the provisions of the Civil Procedure Code, 1908 supplemented from time to time by rules in that behalf by High Courts of the States. There are rules of the Supreme Court and rules by special enactments as well. For one, words ‘plaints’ and ‘complaints’ are nearly synonymous. In both, the expression of grievance is predominant. Verily, when a suitor files a statement of grievance he is the plaintiff and he files a ‘complaint’ containing allegations and claims remedy. As days passed, we have taken up the word ‘Plaint’ for the Civil Court and the word ‘Complaint’ for the Criminal Court.

Order 6, R . 1 of Civil Procedure Code (C.P.C.) defines ‘pleading’. It means either a plaint or a written statement.’

With the passing of time written pleadings supplanted archaic oral pleadings. When reduced to writing the scope of confusion, for obvious reasons, was made narrower.14 In this we find the object of a pleading which aims at ascertaining precisely the points for contention of the parties to a suit. The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one main object in view. It is to find out and narrow down the controversy between the parties. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give each side intimation of the case 12

Order 6, R. 1 of Civil Procedure Code (C.P.C) .

13

Dr. N.K. Chakrabarti, Principles of Legislation & Legislative Drafting (2nd ed. 2007)

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of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take15. Necessarily, a pleading is accurate only when stripped of verbosity it pinpoints succinctly the plaintiff’s grievances giving him the right to sue for the desired relief, or when it briefly sets out the defendant’s defence. When so done, there would be hardly any scope left to beat about the bush or to take the other party by surprise.16 Pleadings should be read not by the piecemeal but as a whole and should be liberally construed. Every venial defect should not be allowed to defeat a pleading, for a plaintiffs case should not be defeated merely on the ground of some technical defect in his pleadings provided he succeeds on the real issues of the case. It has been held: “Rigid construction of the law of pleadings was inappropriate and not calculated to serve the cause of justice for which the law of procedure was largely designed17. This should, of course, not be taken as an excuse for pleadings extremely lax and irrelevant, argumentative and inaccurate.” In construing the plaint, the court has to look at the substance of the plaint rather that its mere form. If, on the whole and in substance, the suitor appears to ask for some relief as stated, the court can look at the substance of the relief. “Pleadings have to be interpreted not with formalistic rigour but with latitude of awareness of low legal literacy of poor people.”18 In Udhav Singh v. Madhava Rao Scindia, Sarkari a19, J held20: “A pleading has to be read as a whole to ascertain its import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not mere the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and term of his p leading taken as a whole. 21

15

Ganesh Trading v. Motiram, AIR 1970 SC 480

16


17

AIR 1969 Del. 120

18

id

19

AIR 1976 SC 744

20

Udhav Singh v. Madhava Rao Scindia, AIR 1976 SC 744

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FUNDAMENTAL PRINCIPLES OF PLEADING The fundamental rule of pleadings is contained in provisions of O. 6, R. 2 of C.P.C . which enjoins : (1) “Every pleading shall contain only,a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is conveniently, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.”22

MOCK PROBLEM

Mr. Siddharth Malhotra married to Mrs. Sonia Malhotra on 21st Feb, 2011 in Mumbai. The marriage ceremony took place in accordance with the Hindu Marriage Act, 1955. The couple lived happily for two years after which differences started to come up between them. On 31st April, 2013 Mr. Siddharth Malhotra took up a job in Delhi. His wife later on joined him but six months later she returned to Mumbai. Mr. Siddharth started ignoring his wife’s calls and resisted any attempts by her to contact him. On 12th January, 2014 Mrs. Malhotra went to Delhi to visit her husband. On reaching his residence he refused to let her in and asked her to go back. He further added that he does not want to live with her anymore. On hearing this she immediately went to her parent’s house in Delhi. Thereafter many attempts were made by the families of the bride and the groom to reconcile the marriage. But Mr. Siddharth remained adamant and refused to cohabit with his wife.

22

Dr. N.K. Chakrabarti, Principles of Legislation & Legislative Drafting (2nd ed. 2007)

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PETITION FOR DIVORCE

IN THE FAMILY COURT OF DELHI Case No. : 6234/2016 Petition under Section13 of the Hindu Marriage Act 1955, and in the matter of:

Mrs. Sonia Malhotra aged 28 years

…………………………………Petitioner

W/o Mr. Siddharth Malhotra D/o Mr. Abhimanyu Tiwari R/o House No. 2, B-Block, Main Road, Sunder Nagar, Delhi versus

Mr. Siddharth Malhotra aged 30 years

..………………..…………Respondent

S/o Mr. Abhijeet Malhotra R/o Plot No. 12, Shiv Vihar Colony, Saran Nagar, Delhi

THE PETITIONER MOST RESPECTFULLY SUBMITS AS UNDER:

1. The petitioner most respectfully submits that she is a R/O House No . 2, B Block, Main Road, Sunder Nagar, Delhi and married the respondent on 21st Feb. 2011 in Mumbai according to Hindu rites and ceremonies and their marriage is governed by the Hindu Marriage Act, 1955.

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2. That the petitioner resided happily with the respondent for two years after differences started to crop up between them.

3. That ever since the said marriage and until the thirty first day of April 2013 , the petitioner, Mrs. Sonia Malhotra, and the respondent, Mr. Siddharth Malhotra, cohabited and lived as husband and wife at Plot No. 12, Shiv Vihar Colony, Saran Nagar, Delhi, when he took up a job in Delhi and started living there. After a while his wife joined him and stayed with him for a period of six months after which she returned to Mumbai.

4. That soon after the petitioner’s return to Mumbai the respondent started to ignore her and when she went to visit him on 12 th January, 2014 he refused to let her come inside his house and told her that he did not want to live with her anymore and withdrew himself from the society of the petitioner without any probable or reasonable cause and thereby deserted her to all purposes and

intents.

Thereafter,

the

petitioner

started

residing

with

her

parents.

5. That the petitoner has not in any way been party to or connived at or condoned any of the said acts

of

the

respondent,

Mr.

Siddharth

Malhotra.

6. That this court has jurisdiction to entertain this application as the petitioner and the respondent last resided as a married couple at Plot No. 12, Shiv Vihar Colony, Saran Nagar, Delhi.

7. The applicant therefore prays for a decree of divorce between the petitioner and the said respondent as even after repeated attempts the differences between them cannot be reconciled. An interim relief by way of alimony and any other relief may also be granted.

8. That the cost of petition may also be granted.

Date:

Petitioner’s Signature.

Place:

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VERIFICATION

I, Mrs. Sonia Malhotra, daughter of Mr. Abhimanyu Tiwari and wife of Mr. Siddharth Malhotra aged 28 years by occupation housewife residing at House No. 2, B-Block, Main Road, Sunder Nagar, Delhi do hereby solemnly affirm and say as follows:

I am the above-named petitioner and I know and I have made my acquaintance with the facts and circumstances of this case.

The statements in paragraphs 1 to 8 are true to my knowledge and belief.

I sign this verification on this 21st of January 2016 at the Family Court at Delhi.

Place:

Petitioner’s Signature

Date:

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CONCLUSION

Drafting of legal documents is as killed job.A draftsman,in the first instance,must ascertain the names, description and addresses of the parties to the instrument. The duty of a draftsman is to express the intention of the parties clearly and concisely in technical language.A corporate executive must note down the most important requirements of law which must be fulfilled while drafting complete instrument on the subject. All the time the draftsman must keep his eye on the rules of legal interpretation and the case-law on the meaning of particular words and choose his phraseology to fit them. Apart from the above facts, there are certain rules that should also be followed while drafting the documents. For using particular words and phrases in the conveyancing, the draftsman must be cautious about the appropriate use of the words and should be clear of its meaning. Drafting of documents is very important part of legal documentation. Documents are subject to interpretation when no clear meaning could be inferred by a simple reading of the documents.

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REFERENCES

1. B. R. Atre, Legislative Drafting (2nd ed., 2006) 2. Constantin Stefanou & Helen Xanthaki, Drafting Legislation (2008) 3. Dr. N.K. Chakrabarti, Principles of Legislation & Legislative Drafting (2nd ed. 2007) 4. Dr. S.R. Myneni, Drafting Pleading and Conveyancing (1st ed., 2003) 5. G.C. Thorton, Legislative Drafting (4th ed., 1996) 6. Susan Blake, A practical approach to Legal Advice & Drafting (5th ed. 1997)

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DPC

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