Showing posts with label Divorce. Show all posts
Showing posts with label Divorce. Show all posts

Sunday, May 13, 2018

Complaint Of Domestic Violence Can Be Filed Even After Divorce: Supreme Court

A woman can lodge a complaint under the domestic violence law against the excesses committed by her husband even after the dissolution of marriage, the Supreme Court has said.

The top court refused to interfere with the order of the Rajasthan High Court which held that the absence of subsisting domestic relationship in no manner prevents a court from granting relief to the aggrieved woman.

The high court had passed the order while adjudicating a matrimonial dispute.

A bench of justices Ranjan Gogoi, R Banumathi and Navin Sinha dismissed the appeal against the high court verdict, saying it was not inclined to interfere with the order in the facts of the case.

It was contented that husband-wife relationship often ends on an acrimonious note and if the provisions of the Act were allowed to be used retrospectively, then it would further increase the acrimony and rule out the possibility of any compromise.

He said that legislature's purposive interpretation has to be kept in mind while interpreting any provisions of the law.

The bench, however, refused to agree and declined to interfere with the high court order in the facts of the case.

The high court had held on October 30, 2013 that the subsistence of marriage or domestic relationship was not a condition precedent for an aggrieved person to invoke the protection orders and other reliefs under the provisions of the Act.

"If the aggrieved person had been in domestic relationship at any point of time even prior to coming into the force of the Act and was subjected to domestic violence, the person is entitled to invoke the remedial measures provided under the Act,

The high court had said cited an example saying that even after the dissolution of marriage between the parties, if an ex-husband attempts to commit an act of violence such as entering the place of employment of the divorced wife, trying to establish contact with her or causing violence to her dependents or other relatives, she is not precluded from seeking protection orders under the law.

If the divorced husband attempts to dispossess the woman from the shared household or property jointly owned, she can approach a court for appropriate relief.

Thursday, June 15, 2017

persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.

The Supreme Court of India in Narendra vs. K.Meena has held that persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.
The Bench comprising Justice Anil R. Dave and Justice L. Nageswara Rao also held that leveling of absolutely false allegations with regard to extra-marital life and repeated threats to commit suicide would also amount to ‘mental cruelty’. The Supreme Court set aside a High Court judgment which had reversed the Trial court order granting divorce to the husband on ground of cruelty.
Repeated threats to commit suicide
Observing that repeated threats to commit suicide amounts to cruelty, the Court observed: “No husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. The mere idea with regard to facing legal consequences would put a husband under tremendous stress. The thought itself is distressing.”
Forcing separation from parents
With regard to allegations of cruelty in wife forcing husband to get separated from his parents, the Bench observed: “In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason; she would never insist that her husband should get separated from the family and live only with her…. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income.”
Wild allegation of extra marital affairs
The Court also observed that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person – be it a husband or a wife.
Restoring the judgment of Trial court and setting aside the High Court judgment, the Bench said: “The behaviour of the wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquility and peace of mind. Such torture would adversely affect the life of the husband.”

Monday, May 11, 2015

Supreme Court asks own: Are we being flexible with law in granting divorce?

Under Article 142, the Supreme Court has the authority to issue any order “for doing complete justice”.
A Supreme Court bench has decided to examine whether the top court should be granting divorce on the ground of irretrievable breakdown of marriage and without the mandatory 18-month period of separation.
For many years now, the Supreme Court, exercising its power under Article 142 of the Constitution, has been granting divorce even while the Hindu Marriage Act makes it mandatory for couples to stay apart for at least 18 months before parting with mutual consent.
While the government has informed the top court that there is no proposal to incorporate irretrievable breakdown of marriage as one of the conditions for grant of divorce in the Act, a bench of Justices Ranjan Gogoi and N V Ramana has decided to examine whether judges should be overriding the legislative will.
Under Article 142, the Supreme Court has the authority to issue any order “for doing complete justice”. Using this, the court has granted divorce in several cases, dispensing with the six-month waiting period after a judicial separation of one year — that makes it 18 months under Section 13B of the Act.
Adjudicating a clutch of petitions wherein couples wanted the waiting period to be curtailed since there was irretrievable breakdown of marriage, Justices Gogoi and Ramana wondered if they should exercise such power when the Act provides otherwise. They sought the views of Attorney General Mukul Rohatgi who said the legislature was not contemplating irretrievable breakdown of marriage as a ground for divorce.
On whether the court should dispense with the waiting period, Rohatgi said there have been dissenting views of different benches of the apex court between 1996 and 2010. Some judges were of the opinion that the six-month notice period should be relaxed while others said if legislature had a specific provision, couples should be sent to family courts for getting divorce as per law, he said.
Rohatgi said it may be proper to let a constitution bench decide whether divorce can at all be granted on the ground of irretrievable breakdown of marriage and also if the waiting period could be dispensed with.
The bench, however, noted that referring the issue to a constitution bench may not provide a solution since a decision by it would take long while such cases would keep coming up in quest of speedy disposal. It observed there could be “numerous peculiar situations” in a marriage and when “it is almost impossible to understand human beings, devising a thumb rule to grant divorce in such cases is very difficult”.
The bench appointed four amicus in the case — senior advocates V Giri, Dushyant Dave, Indira Jaising and Meenakshi Arora — and sought their assistance in finding legal answers to two questions it framed.
It sought to know whether the top court should exercise its power under Article 142 at all or whether it could be done on a case-to-case basis. Further, what could be the broad parameters for exercise of such power to dissolve a marriage without referring a couple to a family court to wait for the mandatory period.

Saturday, May 31, 2014

Alimony to husband by wife

In recent divorce cases, courts, deviating from the norm, have been denying maintenance to the wife if she is capable of earning or was earning in the past. There are also cases of the wife being asked to pay maintenance to the husband.
The husband paying maintenance to the wife is the textbook model for divorce proceedings. However, in a recently developed trend, the courts have been denying maintenance to the wife if she is capable of earning or was earning in the past. There have also been cases where the court, instead of going the conventional way, has told the wife to pay maintenance to the husband. Even the wives, in a hurry to end the marriage as soon as possible, are opting for out-of-court settlements and paying the husbands a permanent alimony.
Maintenance Plea by the wife rejected
In a recent judgement, a trial court in Delhi denied the plea of a woman seeking maintenance from her husband. It was reported that the trial court dismissed the woman's plea seeking residential maintenance from her estranged husband, and observed that no financial assistance can be provided to a woman if she earns as much as her husband. Anuradha Shukla Bharadwaj, additional sessions judge, observed, "In the era of gender equality, bias cannot be shown to one gender and discretionary relief of financial assistance cannot be granted to wives despite their capability to earn as much as their husbands."
The court, reportedly, said that rental maintenance would have been awarded to the wife had she proved that she was incapable of arranging an accommodation for herself. However, in this case, she was living with her mother.
Although uncommon, it is not the first time that a court has denied maintenance to the wife. There have been several cases where the court has supported the husband and denied the wife's plea for maintenance. In a case, "The husband was an NRI from the UK and the wife was working with a multinational bank here in Delhi, and she was drawing a salary of `60,000-70,000. They had a troubled marriage so the wife filed for divorce. She asked for maintenance under Section 125 of the Code of Criminal Procedure, 1973, from her husband, stating that he was quite rich. However, her plea for maintenance was rejected and the court ruled that since she was earning well, she didn't need her husband's money to survive, despite the fact that he was quite well-off."
"A trend has developed recently wherein the court is denying maintenance to the wife if she has capability, capacity and past employment." Citing a case, he says, "There was a case in which the wife was a dentist by profession and used to be employed. However, at the time of divorce, she wasn't working and asked for maintenance from her husband. But the court denied her maintenance because, in this case, she had the capability and capacity, and was working in the past. So, she could work again to support herself."
Family resource cake
It is not necessary that either of the party has to pay maintenance to the other in divorce cases. "In 2004, Justice Vikramjeet Sen of the Delhi High Court (as he then was) worked out a formula involving a 'family resource cake' in order to provide maintenance to even working wives. Justice Sen, in the said judgment, combined the income of both the spouses, calling it the 'family resource cake.' Half of the 'cake' was allocated to the husband to meet his expenses, and the other half to the wife and children, for their maintenance. This method has been widely followed by other courts in Delhi when awarding maintenance to either spouse."
Maintenance in favour of the husband
Although in most cases, the wife is awarded maintenance to enjoy the same lifestyle as that of the husband, there are also instances where the reverse happens. Not only is the wife refused maintenance, in many cases, she is also asked to pay maintenance to the husband.  In a case where the court granted maintenance to the husband, the Court granted maintenance in favour of the husband, who was suffering from a mental disorder, while the wife had a government job. The wife earned about `20,000, and the husband was granted a maintenance of `2,000." 
There was another case in which a court passed a judgment supporting the plea of a husband who, under Section 24 of the HMA, wanted maintenance from his wife. The trial court directed the wife to pay the husband `20,000 per month as maintenance, `10,000 as litigation expenses and also to provide a car for him. This judgment was later challenged in the High Court by the wife, but the HC also supported the judgment of the trial court. The wife was running a paying guest facility while the husband was unemployed.
The law which allows the husband to seek maintenance from his wife
Husband can only seek maintenance under Section 24 of the Hindu Marriage Act. "Section 24 of the Hindu Marriage Act, 1955, provides that the court, in case of either the wife or the husband having no independent income sufficient for her or his support, may, on the application of either of the spouses, order to pay to the petitioner the expenses of the proceedings and monthly expenses during the proceedings such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. So, under this section, even the husband can file an application claiming maintenance pendent elite in the pending divorce case. But the only pre-requisite is that he should not have sufficient income to maintain and support self in consonance with the lifestyle and income of the wife. Assuming the wife is earning much more than the husband, the husband only in that eventuality shall have the locus to file for maintenance."

Monday, July 30, 2012

Limitation Act - Time for Appeal

Law relating to limitation is incorporated in the Limitation Act 1963 which prescribes different periods of limitation for suits, petition or applications. The act applies to all civil proceedings and some special criminal proceedings which can be taken in the court of law unless its application is excluded by any enactment. The Act extends to whole of India except the state of Jammu and Kashmir. The statutes of limitation are based on the principles of public policy which diligence and to prevent oppression.
The Law of limitation bars the remedy in a court of law only when the period of limitation has expired, but it does not extinguish the right that it cannot be enforced by judicial process. Thus if a claim is satisfied outside the court of law after the expiry of period of limitation, that is not illegal.
The intention of the law of limitation is, not to give right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right. The object is to compel litigants to be diligent in seeking remedies in court of law by prohibiting stale claims. It is to help the bona fide claimant and to prevent fraud being practiced by people upon innocent persons by keeping action hanging on them for a long time.
Computation of the period of Limitation
The Courts in India are bound by the specific provisions of the limitation Act and are not permitted to move outside the ambit of these provisions. The Act prescribed the period of limitation in Articles in schedule to the Act. In the articles of the schedule to the limitation Act. columns 1,2, and 3 must read together to give harmonious meaning and construction.
Bar of Limitation
Sec 3 of the Act provides that any suit, appeal or application if made beyond the prescribed period of limitation, it is the duty of the court not to proceed with such suits irrespective of the fact whether the plea of limitation has been setup in defence or not. The provision of sec 3 are mandatory. The court can suo  motu take note. The effect of sec 3 not to deprive the court of is jurisdiction. Therefore, decision of a court allowing a suit which had been instituted after the period prescribed is not vitiated for want of jurisdiction.
Extension of Time in Certain Cases
Doctrine of sufficient cause
Sec 5 allows the extension of prescribed period in certain cases on sufficient cause being shown for the delay. This is known as doctrine of “Sufficient cause” for condonation of delay which is embodied in sec 5 of the Limitation Act. 1963. Sec 5 provides that any application other than application under provision of order XXI of the code of civil procedure 1908 may admitted after the period of limitation if the appellant satisfies the court that he had sufficient cause for not preferring the appeal. However it must be a cause which is beyond the control of the party.
Person under legal disability
Section 6 is an enabling section to enable persons under disability to exercise their legal rights within a certain time. Section 7 supplements section 6,section 8 controls these section, which served as an exception  to sec 6 and 7. The combined effect of section 6 and 8 is that where the prescribed limit expires before the cessation of disability, for instance, before the attainment of majority, the minor will no doubt be entitled fresh period of limitation.
Computation of period of limitation:

i)  Section 12 to 24 deals with computation of period limitation. As per section 12 the day to be excluded in computing period is the day from which the period is to be reckoned and the time requisite for obtaining a copy of decree shall be excluded.

ii)  Time which leave to sue or appeal as a pauper is applied for also excluded.

iii)  The time which a suit or application stayed by an injunction and the continuance of the injunction and the time taken for obtaining sanction or consent.

Divorce by mutual consent

i) A separation of one year before filing the case please note that actual physical separation is not required, even if both parties are sleeping in the same bedroom they can be said to be seperated for the purposes of mutual consent, if they are not living together as husband and wife;
ii) A flawlessly drafted MoU (Memorandum of Understanding) that settles the terms on which you part away, people don’t understand the importance of this, this is extremely important so as to end the matters with a finality once and for all, there are no loose ends and make sure there is no litigation in future;
Once the above is done – you have to get drafted the Divorce petition that encapsulates the contents of your earlier MoU.
After Court
When you file your divorce by mutual consent petition – it comes up for hearing and your statements are recorded, then the court gives you a period of 6 months (basically to think over your decision) after which,  on recording of final statements divorce decree is passed.
Monetary Settlement/Maintenance/Alimony/Child Custody issues.
A Mutual Consent petition gives you the flexibility to come to your own terms with respect to the issue. If a full and final settlement is reached – the money can be paid before the court at the time of final hearing.
In all this procedure enables couples to part away amicably on a good note, without ruinous litigation, and without much expense.