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Difficulties faced by men in Family Courts
  • By: Adv. Kishan Dutt Kalaskar
  • Date: 22 Jul 2020
  • Divorce
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A woman in India can file various cases against men according to the Indian laws. A marriage is considered as a soulful connection between a man and the woman and is performed through different marriage laws which include the Hindu Marriage Act, Personal Marriage Act, etc. However, nowadays, this institution of marriage is easily broken. There has been an increase in the number of the breakdown of wedlocks each year either due to the fault of the husband or the wife. The divorce rate of marriage in India is increasing every year. According to the reports,1out of every 100 marriages, is broken and is taken to court every year. Due to this increasing rates of divorce every year, strict laws have been implemented which safeguards the interest of the women, but at the same time, does not give much importance to the problems that a man has to go through in a family court. 

A family court witnesses’ matters that are related to the family. It includes divorce cases, property-related cases, annulment cases, etc. Most of the cases which are related to divorce are always biased against the husband unless and until it is not a mutual consent divorce. A divorce which is filed by the wife always backfires on the husband. The husband does not only tackle the trauma of divorce, but he also undergoes issues like filing of FIRs against him, allegations of domestic violence and dowry, matters related to maintenance and alimony etc. With this, a father also has to fight for child custody, which normally turns out to be in favour of the mother, as a mother holds the primary rights of her child. This has been held and reiterated in many decisions of the apex court, that except in situations where the child is able to form an opinion of his own, it is in the interest of the child that custody matters need to be determined, and the same has been held in Elizabeth R. Dinnshaw v Arvind M. Dinshaw 1987 AIE 3 here it was the case that the minor was not old enough to form his own opinion on the matter of custody, and the court had to make the call, it decided the matter in the mother’s favour, despite the different considerations weighed by the court in deciding the matter, it has since then become a rule of thumb that the child will be in the custody of the mother in the event of discord within the partners.

A wife is entitled to file a complaint against the husband under Section 498A, IPC, The Hindu Marriage Act, 1955 and the Domestic Violence Act, 2005. This paper extensively talks about the problems that men deal in the family court. It talks about how some Indian laws are favoured towards women, and for men, it gets tough and ugly to prove himself as innocent. This paper will also provide the reader with landmark judgments that have created some change in the country and have impacted the subject of the law to make some necessary amendments.

Discussed below is a list of major issue faced by men and his family members.

Section 498 A of IPC

According to section 498 which defines cruelty, the same is repeated in the DV Act, but for consideration in this section of the paper, Sec. 498A shall suffice, cruelty has been defined as follows: Including verbal as well as physical abuse by the husband or by his family. In Law context, there is a maxim known as Audi Alteram Partem (hear the other side), but it is important to note that, in practicality, section 498 of IPC has swept away this fundamental right as once a case is filed by the women, the police hardly listen to the men.

Moreover, what makes this law tougher is its subject matter. The Indian penal code has no definite definition of the term “Cruelty”, and therefore, anything done by the husband which goes against the ethics of the society is termed as cruelty and based on that FIRs are lodged. With this, it is a non-bailable and non-compoundable offence which makes it difficult for the men dealing with it.  It should be noted that, at the stage of registering of offence, the officers in charge have been known to show no discretion in registering the offence, despite in some situations outright inconsistencies in the complaint filed before them. This, combined with the ability of the litigant to include the family members of the husband in the complaint, usually results in harassment by police and investigating personnel, of the husband and his family.

The Madras court in Rukmani v Manonmani 2017 SCC OnLine 20343 demonstrates the potential and the difficulty in establishing the veracity of a vexatious complaint: In the matter, even though the complaint itself was a fiction, and it was prima facie to the HC, the District Court refused to quash the proceedings, and even refused to refer the act and complaint. It is important to note that in most instances of such alleged abuse, the courts have been quick to detect this same and make appropriate order in the matter: Saritha v R. Ramachandra2003 (1) E.C.R. Crim. 481, is a prime example of it, whereas part of a divorce proceeding on the grounds of cruelty the wife had filed under Sec. 498A against the whole family, the HC struck the complaint down, highlighting the possibility of vexatious complaints, and the duty of courts to detect the same. Something similar came before the Punjab and Haryana HC in Harjinder Kaur and Anr. V State of Punjab2004 (4) R.C.R. Crim. 432where the court had to determine the complaint under Sec. 498A filed against the family of the husband, where some of the co-accused were minors at the time of the alleged offence; Then court noted the same and opined that the complaint had included as many people as it could, without any proper consideration to the factual matrix. Courts have been aware of the misuse potential of Sec. 498, and the Madhya Pradesh HC has even recommended that the section be made compounded so that an amicable settlement could be reached between the parties: Ramgopal v State of MP. SLP (Ct.) No. 6494 of 2010The most prominent example of this judicial opinion towards Sec. 498A can be seen in the SC decision, and obiter dictum by J. Chandramauli Kumar Prasad held that due to its non-bailable and cognizable offence, it has lent it a dubious place among provisions that are misused, and are rife with potential for harassment, Primarily held in Social Action Forum for Manav Adhiikar v UOI(2018) 10 SCC 443there is ample precedent since then, to demonstrate that there have been so many instances of harassment and misuse of the section that, the judiciary has taken cognizance, an recommended measures to be taken by the legislature.

The wife on the other side, makes it sure, that such complaints are lodged on Friday so that the defendant at least for the next two days cannot apply for bail since the courts are shut on the weekend. This was a major issue that was witnessed by the husband and his family, and due to the increasing cases of false complaints by the wife and due to the unavailability of any physical evidences, the courts used to give misgivings. However, according to the reports, a quarter of the arrested were women relatives of the husband. Charge-sheets were filed in almost all cases (93.6%), but convictions were abysmally low, at under 15%. Something was obviously wrong. At that rate, the report went on to say, 372,306 pending cases will have 317,000 acquittals. This low rate of conviction could be interpreted two ways, one that the inherent nature of domestic violence cases contributes to difficulty in establishing cases against accused, or that there are in fact, so few instances of proven domestic abuse and the cases and complaints filed have been merely to harass and intimidate the husband and his family. While neither of these assertions has been confirmed, nor denied, this statistical figure begs the question, whether more cases than necessary are clogging the docket.

The above report states that the courts will have to look for an alternate method that deals with speedy disposal of trials and something to be done with the false complaints lodged by the wife for malicious intentions.

  • It should be noted, that the courts have already made guidelines for disposal of complaints filed pursuant to filing under Sec. 498A. in the abovementioned case of Amresh Kumar,the SC endeavoured to make the following rules to ensure that automatic arrest and detention does not become the norm in such matters: Police officers shall fill in the checklist before making a decision in the arrest of a person accused.
  • The police shall satisfy themselves that there is a genuine case for abuse before registering the offence.
  • The decision by the police will be cross verified by the Magistrate.

Through these measures, the court ensures that cases of domestic abuse/ violence are not vexatious registered, and in the event that they are such ill intentions and false decisions are detected early in the investigative process.

Dowry Demands

The various provision covering the mental abuses with respect to women in India have also covered an interpretation regarding protecting the rights and interest of men on the same parlance. Covering various rights promised by the Preamble of India have further segregated and clubbed under various Act or laws. This article further narrows down by giving serious consideration to a wider understanding of these rights relating to the harassment and troubles faced by the men and their family members in society after a complaint or a suit filed by women by taking undue advantages of the provisions legislated to protect her interest in the society. In India, as far as marriages are concerned as quoted as wedlock between the families of the two individuals is far more than wedlock between the two individuals. Its tradition involves many rituals followed by some age-old practises such as dowry. Dowry in simplest term can be defined as kind or money itself given to the groom by the family members of the bride as a gift. The law has termed dowry from a period till today as a criminal offence if it is demanded from the natal family of the bride, and there are serious consequences if any person has conducted any act of dowry demand in the territory of India. The legislation understanding various criminal activities that are associated with or are the result of the dowry demands should be prohibited for the harmony of the state, with a clear objective legislature has passed an Act that regulates and prohibits such activities, i.e. Dowry Prohibition Act, 1961.

Though legislation incorporated the act with the intent to protect women it has also did not contemplate the abuse of it against the men in the society, there are provisions made specifically with the single objective which in turn has been understood as a double-edged sword. Dowry Demand has turned against the men in the society with various matters every day being filed in the police stations or with the women’s development cell of the country reiterating these provisions taking hold of men without being provided with an opportunity of being heard.

In the case of Pushkar Singh, it was seen that a resident (Pushkar Singh) residing at Lucknow committed suicide writing a note stating the in-laws are solely responsible for his death. Pushkar Singh was wrongly sentenced to imprisonment under section 4984, 323 and 504 of IPC. The wife in here filed against the husband stating the false demand of the dowry of Rs. 14,00,000/-. The deceased mentioned in the note that this case has also led in financial difficulties for him and his family they also have sold their house for procurement of some financial gain for survival.

Cruelty under the Domestic Violence Act

While explaining the cruelty the basic understanding of the point of view is that a mere annoyance not of any serious consequences in matrimonial affairs would not be treated as cruelty it has to be seen in an angle of nature of any act found to rare unlike routine discussed quarrel and is of serious nature that might lead to grave consequences to either spouse by the other. Any such act can only be termed cruelty which though not satisfying all inhuman or extreme inhuman condition but are considerable enough for protection of either party in matrimonial affairs.

Domestic Violence Act in its inception was enacted with a sole objective to curb the violence against the women in the country majorly violence’s involved in matrimonial affairs, but such provision protecting the rights of the women have proven to be fatal for men. The data signifies that many false Domestic violence cases have been filed by women, in turn, to coerce men into fulfilling impossible or unethical desires. A report submitted by the two non-profit organizations, save family Foundation and My Nation Foundation have published a survey which provides that out of 1,00,000 reports filed by the women in the country between the year 2016-17, only 2.8% of the cases were actually proven to be of some validity. The data provided by the National Crime Record Bureau that as compared to women, 21.16% of more men than women were reported to commit suicides due to DV.

During such pending litigation that eventually relates to curtailing the rights of the men by providing extra protection as assumed by the government towards women have led to many fatalities resulting suicides, depression, insanity and other inhuman activities out of frustration of having no remedy to set the matter out. Many organisations and advocates understanding the nature of the provision under various women protection law have advocated the need for new legislation or at least amendment in the law, in order to protect the interest of men. The Honourable Apex Court has understood the need to provide various direction to be provided to police in dealing with a various matter involving domestic violence, dowry, abuse or cruelty.  This context changed in respect of the men after the #metoo movement launched where women were freely asked to file complaints against any act of violence against them; there were many fakes cases being reported against men.

Protection

The Criminal Procedure Code (CrPC) deals with the procedure to deal with criminal complaints filed by any person in prayer to authority to act in their capacity to take steps to mitigate the loss or reinstate the right of the pleader. The various sections dealing with the protection of any person who is the opinion of the complaint raised against him is false or futile.

Further various legal remedies have been made available to any person who is accused by any person under any law enacted to protect women’s rights. A person can seek protection` under these provisions mentioned:

Section 227: The section states that any person believing the complaint raised by his wife is false according to him the person has to provide the evidence in contrary to the complaint on this basis and the Honorable Magistrate can dismiss the plea by the spouse under section 498A and decide accordingly.

Section 438: This section in CrPC deals with presenting an appeal or making an application for bail before the session court to circumvent the arrest from the police; this application is also known as Anticipatory Bail.

Section 482: The inherent power of the High Court to dismiss the matter if the evidence or testimony does not seem to support the accusation made against the person (spouse) by his wife where such section deals with an objective that any power of the law to protect the interest should not be used for personal vendetta or as a weapon for undue advantage, this can also be used to quash the FIR by any person.

The Honorable Apex Court, while envisaging the guidelines for the use of section 482 states the list of pointers to be included in the application:

a. No prima facie case

b. Absence of cognizable offence

c. Crime in the case cannot be disclosed

d. Lack of evidence

e. Time barred by the Limitation Act

f. Vexatious in nature

A person can also file the complaint under section 9 of Civil Procedure Code, 1908 to recover the damages a person faced under the proceeding or police custody for the false case.

As per the finding of the Apex Court in the case decided by the Honorable High Court in Anuj Chaudhary v/s State of Uttar Pradesh stated that there cannot be two or more / any multiple FIR of the same offence. Any person filing multiple FIRs will be considered as one offence if the matter of the offence is same and person lodging the FIR praying for the same remedy from the state authority (police) this contemplation was provided by section 154 of Indian Penal Code.

The Indian Penal Code governs, regulate, and directs the punishment found guilty under the crime of any nature (whether heinous or non-heinous). There are various provision protecting the rights of spouse if being caught in case of heinous nature if such person believes himself to be innocent.

  • Section 120B: This section deals with criminal conspiracy, any person filing a suit or complaining about any person to the state authority and such complaint has no stand or basis or that person has no locus standing in filing complaint such person is at good faith to file a complaint under section 120B to prove the complaint is a mere conspiracy against him.
  • Section 182:  This section deals with protecting the interest of the person against his spouse if the wife submitted or provided false evidence for the public servant to act accordingly.
  • Section 191: This section states that person can file a complaint under this section, raising doubt on all the documents presented by his wife to authority seeking benefits of false evidence.
  • Section 504: This section deal with any act by spouse or communication by way of oral or written to provoke the other party is acting against with an intent to make it a reason for filing a complaint or instigating a situation of violence to provide evidence to falsely accused.

The Apex court states that any person filing FIR does not conclude with translating it into the immediate arrest of the person against whom a complaint has been filed. The court has time and again reiterated the cardinal principle of “presumption of innocence” where it states that every person is to be treated as innocent until proven guilty. In the case of Advait Amrish Goel v/s Mukesh school of technology,it was laid down that mere filing of the FIR would not be understood as gospel truth.

In the case of Arnesh Kumar v/s State of Bihar the apex court states that section 41 of Criminal Procedure Code, 1973 should be implemented and practised by the police if any cases have been registered under section 498A of IPC. Further, it states that there should a change in police arrest techniques a human conception should be applied to every case depending on the gravity and police acumen to take the next step. Arresting a person on the filing of FIR violates the cardinal principle of the law, and it also results in the violation of the rights of the person provided by the Constitution of India. The arrest of any person in violation of Article 14 that provides equal protection of the law and equality before the law. It also curtails the freedom of life and liberty thus should be made proper accordance of the law. The law provides the authority to arrest a person without a warrant in the cognizable offence, but it also restricts the police to arrest of any person chargeable with imprisonment of more than 7 years under section 4 of the Dowry Prohibition Act, 1960 if the presiding officer according to him is not satisfied with the arrest to be made.

The Apex Court further states that any person on the basis of the cardinal rule and also if the court has no evidence to believe either the offence that has been committed or under argument provided by the counsel has reason to believe of being harmless should be provided bail until the matter concluded.

Conclusion

Mental illness contributes to one’s health in a very drastic way. We often tend to ignore this aspect as it does not attract any major law. But right now, it is the need of the hour, that stringent law should be made which are able to protect and safeguard a man’s mental health that arises solely due to the false circumstances that a woman creates.

The family welfare program has been constituted by the government that takes as the duty to protect the rights of the victim and his family member in cases causing mental trauma or economical diseconomies. Various groups have been formed in protecting the rights of men, and they have taken up the issue that is causing them serious consequences in their life.

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Mutual Consent Divorce through Video Conferencing

By: Adv. Kishan Dutt Kalaskar Divorce 03 Jul 2020

Mutual Consent Divorce is an easy way of coming out of the matrimony and dissolve it legally. When the spouse (husband and wife) agree to take a divorce, the courts will consider as a mutual consent divorce. For the petition to be accepted, however, the spouse should be separated for more than a year or two years. They can be separated when the couple, still agree for mutual divorce because it is comparatively inexpensive and not as troubling as a contested divorce. The issues related to children's custody, alimony or maintenance and property rights can be agreed mutually too.

According to the law, there is no minimum or maximum limit of maintenance, and the child custody can be shared or joint depending upon the mutual comprehension of the couple.

The number of matrimonial cases filed per year in India is a lot more when compared to other countries. Delhi has 11,862 pending matrimonial cases. The courts disposed of more than 24,000 cases in the last two years. Kerala tops the list with 52,000 cases awaiting adjudication till November 2016. On the contrary, Uttar Pradesh has just 5,466 cases pending in its 76 family courts. This not only increases the burden on the courts, but it also delays the cases which are urgent and require speedy disposal. Due to the increasing number of cases, the need to use the technology to dispose of such cases was realized by the courts. Video-conferencing is one of the modern ways which can help people to get speedy trials, and on the other hand, the court, the judges and the litigants can enjoy less burden of matrimonial cases.

Video conferencing is a comparatively new tool in the arsenal of the judiciary, the aim of the same is to make the availability of witnesses and parties to the suit more pragmatic, as discussed in the matter concerning the Indian Planned Parenthood Federation in the Delhi HC, where the two-judge bench of J. Bader Durrej Ahmed and J. Sanjeev Sachdeva; The Hon'ble justices have referred to this pragmatisms in light of the specific appeal of the party in requesting the recording of the testimony of one of the witnesses via video conferencing. This seminal decision in the Delhi HC has been backed by the SC in State of Maharashtra v Dr. Praful Dubey AIR 2003 SCC 601 where the application of Sec, 273 of CrPC was discussed and held that the meaning of the term 'Presence' as used in the section refers not to the physical presence, but the general availability of the witness to the court, and since presence in this modern era can be guaranteed even without the physical existence of a party, video conferencing is an agreeable replacement to the physical attendance of the party to court. In both these cases, the court held financial ability and capacity to appear as a secondary reason and argued that there is no set reason why online attendance for a court procedure could be granted, although the text is obvious enough to exclude laxity. It is to be noted that the cases are criminal appeals in the respective HCs, and the interpretation focuses on interpretation in CRPC, but it is equally important to note that the term 'presence' can be superposed in civil matters as well, and there is nothing in the way of applying the same to family court procedure.

 

History of divorces through video-conferencing

Divorce cases may be fought on video in future rather than in crowded courtrooms amidst strangers. Krishna Veni Nagam vs Harish Nigam 2017, changed the way through which the courts use to start proceedings of the matrimonial cases. The case was regarding a woman who filed a petition in the court stating that, she lives in Hyderabad with her minor daughter and has to travel to Jabalpur where her estranged husband has filed a divorce case. The bench which had Justice A.K Goel and UU Lalit allowed the petition and transferred the divorce matter from Jabalpur to a family court in Hyderabad, noting that the plea was pending before it for three years. With this, the court observed that just transferring a case from one place to another is not a solution. The court said, "This court is flooded with petitions of this nature and considering the convenience of the wife, a transfer is normally allowed. However, in the process, the litigants have to travel to this court and spend on litigation. Question is whether this can be avoided." The bench observed that one could not ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. To combat this situation, it was then that the Supreme Court decided to conduct these cases through video conferencing, which not only saves money but is also more convenient to both the parties involved in it. Taking this decision, the court also said, technology ought to be utilized for receiving communication from parties. We are thus of the view that it is necessary to issue certain directions which may provide alternatives to seeking transfer of proceedings on account of the inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred, it will result in denial of justice." When it was argued that, not every place has the facility of Video calls, the court said, "We understand that in every district in the country, video conferencing is not available. In any case, wherever such facility is available, it ought to be fully utilized and all high courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for a certain category of cases." This decision was important and essential as it eliminates the need for the person to be present personally in court. The court noted that a divorce case is usually filed in a court within which jurisdiction the husband lives or the wife lives or where the couple had their matrimonial home.

In most cases, estranged couples may very well go their separate ways, probably to other States. The Supreme Court found that the odds are usually stacked against the estranged husband when the wife prefers a transfer of the matrimonial proceedings to a court in her vicinity. When such a transfer application comes up, the courts either order the husband to foot the wife's travel and accommodation expenses or mechanically allow her plea. The judiciary justifies that this empathy towards women is based on three factors — the constitutional scheme to provide women equal access to justice, the power of the State to make special provisions for women and children and duty to uphold the dignity of women.

It is also important to note that, this judgment was opposite to the case the court had in the 2006 judgment in Anindita Das versus Srijit Das. In the mentioned case, the Supreme Court had insisted that transfer of the matrimonial case to the wife's place is a must when she does not have "any male member to accompany her to the matrimonial proceedings".

 

Current Stand of Divorces through Video conferencing

After the Supreme Court, allowed the divorces through video calls, the current scenario of divorces remains the same and people do apply for divorces through skype and video calls. In a recent case, Harshada Bharat Deshmukh Vs. Bharat Appasaheb Deshmukh, ST. NO.1788 of 2018, the Bombay High Court has held that a petition for divorce through mutual consent can be filed through a registered power of attorney and directed the Family Court, Bandra, to allow recording of consent terms via Skype or any other technology. The couple filed a petition before the Family Court for dissolution of marriage through mutual consent under section 13 B of Hindu Marriage Act.

However, the petition was signed by the husband and the father of the wife, who is also her registered power of attorney holder. The family court under this held that both the parties must remain present, for filing such a petition and the petition was dismissed on the same ground. Samir Vadiya, the lawyer of wife, argued that his client was employed in the United States of America and was unable to remain present due to employment rules and regulations she was governed by. Vadiya also claimed that both the parties were living separately for more than a year and the refusal of the petition on the ground of non-presence is not valid. He placed reliance on a judgment of the high court in Mukesh Narayan Shinde v Palak Mukesh Shinde to submit that it is permissible for the family court in the light of technological development to arrange for e-­counselling and e-­verification by video conference.  Furthermore, he also relied upon the judgment of Punjab & Haryana High Court in Navdeep Kaur v Mahinder S Ahluwalia to submit that personal appearance of the parties at the time of presentation of the petition for divorce by mutual consent is not mandatory and the parties may be represented through a duly constituted attorney.  The same reasoning was used in the matter of J. Kalpana v S. Sreenath that was filed before the Madras HC.

It is important to note that, in Sec. 13-B, the court interpreted the words 'In the presence of the parties' in a literal sense, this has led to courts having to think of workarounds in situations where the parties are estranged, or in different jurisdictions. In the case of Kanwalijeet Sachdev v State of UP(2016) 99 ACC 323, the Allahabad HC followed the ration on Navdeep and agreed that alternative methods, among them, filing a mutual divorce petition through power of attorney, and remote recording of evidence etc. can be done to accommodate the party. Thereafter in the HC of Calcutta, in Annalie Prashad v Ramesh Prashad AIR 1968 Cal 48 it was held that the strict interpretation of the presentation by parties would imply accommodation rather than exclusion of evidence, this ratio has been taken forward in division bench decision by the Delhi HC in Vinay Jude Dias v Renajeet Kaur(2009) 186 Drj 183, here it was held that the power of attorney can be used even in matters of mutual consent divorce, as long as the other requirements have been fulfilled.

These cases establish that, divorce petitions do not require the direct presence of the parties and that alternative solutions can be sought. Courts have shown similar leniency in matters of party presence before the court, in divorce matters, where the party for whom video conferencing is needed is merely a witness as held in Sujoy Mittra v State of West Bengal(2015) 16 SCC 615, and this has been affirmed by the Kerala HC in the matter of Zacharia Arun George Scaria In Re: Titus Mani Adv. 2013 SCC Ker 169.

In the times of Covid-19, the domestic violence is on the rise, and there is very little the government can do about the rehabilitation of the victims, for this reason, it is not too farfetched to think that there might be a spike in the number of petitions filed for separation and divorce after courts return to full capacity. As the courts are only working online, and are taking cases which are of urgent matters, the cases related to divorce might not be heard as of now. However, lawyers suggest that the divorce cases, which includes huge alimony and settlement amounts, will have to be revived and amendments would be made, as the economic situation of every individual post corona period is not going to remain same.

One downside is that most proceedings, except extremely sensitive matters such as POCSO - Preventive Detention, Terror and related matters, are public hearings; thus it means that the courtroom is open to the public to venture into and view. Although it is common practice for parties in sensitive divorce matters to request in-camera proceedings, it is not the norm. Currently, due to the nature of video conferencing itself, most matters where one or both parties deigns to attend through online means will automatically render the proceedings in-camera.

 

Conclusion

Many countries, apart from India, have also used digitalization to grant divorces to couples who cannot remain present together in one particular State or country. There have been many cases in which the parties give their consent for divorce through video calls using Skype, WhatsApp and other online applications. This not only saves time of both the parties, but it is also the way through which hassle-free divorces takes place.

The Indian Judicial System gave a landmark judgment in the year 2017 when it permitted the mutual consent divorce through video conference. Video calls allowance will also help to save a lot of many, which is spent on travel by the parties through one State to the another where the case is being heard. It has also given equal rights to both the women and the men as neither party would have to travel for trials of the cases. Furthermore, digitalization of the country is important as the whole world is turning digital and to match with the same pace is essential.

It is also important to note that Family Court proceedings are more amenable to the collection of both testamentary and material evidence through electronic means, this is because standard evidentiary rules don't apply to family courts due to the application of the Family Courts Act 1984. Hence, any testamentary evidence gathered through video conferencing will not face the usual hurdles of admissibility specifically because the matter is posted before a family court.

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The Special Marriage Act, 1954

By: admin Divorce 04 Mar 2020

Divorce means the dissolution of marriage. It is the process of terminating a marriage or marital status.   The Hindu Marriage Act, 1955 govern Hindus (which includes Sikh, Jain, Buddhists). Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act, 1872. Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act, 1939 & the Muslim Women Act, 1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. Moreover, there is also a secular law called the Special Marriage Act, 1954.

The Special Marriage Act, 1954 is enacted to provide a special form of marriage for the Indian people and all other Indian nationals residing in foreign countries, irrespective of the religion followed by either party. Personal laws do not govern marriages solemnized under the Special Marriage Act. The Special Marriage Act was drafted into the Indian legal system in the year 1954 as one of independent India’s most prominent secular measures. The Act was designed to be a legislation that governs marriages which could not be solemnized under the various religious customs. The Act applies to all Indian citizens, whether residing in India or abroad. The State of Jammu and Kashmir is excluded under the ambit of this Act, though residents domiciled in other states but residing in Jammu and Kashmir would qualify for these provisions.

Primary Objectives

The Special Marriage Act, 1954 has replaced the old Act III of 1872. There are three primary objectives of the Act:

  1. To provide a particular form of marriage in some instances,
  2. To provide for the registration of certain marriages and,
  3. To provide for divorce

Applicability

The Act applies to the following:

  1. Any person, irrespective of religion.
  2. Hindus, Muslims, Jains, Sikhs, Christians, Buddhists, Parsis, or Jews can also perform marriage under the Special Marriage Act, 1954.
  3. Inter-religion marriages performed under this Act.
  4. It applies to the entire territory of India (excluding the state of Jammu and Kashmir) and also extends to the spouses who are both Indian and living abroad.
  5. Indian national living abroad.

Conditions for Marriage

  1. The party involved should have no other existing valid marriage.
  2. The groom must have completed at least 21 years old; the bride must be at least 18 years old.
  3. The parties should be competent regarding their mental capacity to the extent that they can give valid consent for the marriage.
  4. The parties shall not fall within the degree of prohibited relationship.

Marriages under this Act are endorsed based on the following conditions:

  1. No party of the marriage has a living spouse.
  2. No party is incapable of consenting to the marriage owing to unsound mind.
  3. Neither of the parties is affected with any mental disorder rendering them unfit for marriage and for procreation of children.
  4. Neither of the parties is subject to constant attacks of epilepsy or insanity.
  5. The bridegroom and the bride have attained the age of 21 and 18, respectively.
  6. The parties are not within the confines of a prohibited relationship. It may be noted that if a custom governing at least one of the parties does not prohibit marriage between both, the marriage can be solemnized under this Act.

Court Marriage is a union of two souls where the ceremony of the oath is performed as per the Special Marriage Act-1954 before the Registrar of Marriage. It is registered in the presence of three witnesses; then a marriage certificate is issued by the Marriage Registrar appointed by the Govt. of India. Marriage is solemnized between man and women before the court of law.

Section 27 of the special marriage act mentions the provision for divorce in the following way:-

(1) A divorce petition may be filed to the district court either by the husband or the wife on the following grounds.

  • If either of the spouses had voluntary sexual intercourse with any person other than his or her spouse, after marriage; or
  • the petitioner has deserted for a continuous period of not less than two years immediately preceding the presentation of the petition; or
  • is undergoing imprisonment for seven years or more for an offence as defined in the Indian Penal Code;
  • if either of the spouses has treated with cruelty, or has been incurable of unsound mind or has been suffering intermittently from mental disorder of such a kind and to the extent that the petitioner cannot reasonably be expected to live with the respondent.
  • has been suffering from venereal disease; or
  • has been suffering from leprosy, the disease not having been contacted by the petitioner; or
  • has not been heard of being alive for seven years or more by the persons, naturally, have heard of the respondent if the respondent had been alive;

Void Marriage

A marriage under this Act will be deemed void if:

  • Either of the parties did not meet any of the obligations of the Act.
  • The respondent was impotent at the solemnization of marriage.
  • The marriage is consummated due to the willful refusal of the respondent to consummate it.
  • If the consent of either of the parties was obtained through coercion or fraud.
  • The respondent was pregnant by any person other than the petitioner.

In this context, a petitioner refers to either of the party who wishes to abate his/her marriage with the other person, who is known as the respondent.

The right of the petitioner to file divorcé is affected in the event of the following circumstances:

  • The petitioner was ignorant of the declared facts.
  • The proceedings were instituted within a year from the date of marriage.
  • The petitioner has spent his/her marital life with the other with or without free consent.

The divorce by mutual consent is marked under two different section, i.e., Section 28 of the Special Marriage Act, 1954 and Section 13 B of the Hindu Marriage Act, 1955. In order to seek divorce by mutual consent, the parties must be living separately for at least one year and must resolve towards the end of the marriage. They must not be performing marital obligations – physical separation is not a criterion. The marriage must be beyond reconciliation, and presenting a petition for divorce together does not indicate amicability. Consent, however, must be free. If after six months the petition is not withdrawn, the parties may move the court within 18 months, after which the Court may grant the divorce.

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Annulment of Marriage

By: Adv. Jayatinn B Laalwani Divorce 17 Feb 2020

A marriage is a foundation that sets out the rules and regulations that defines obligations, duties, rights, responsibilities and privileges of husband and wife.  It is considered as a contractual agreement between two parties which lays out expectations of behaviour and carrying out duties. Marriage is a social bounding which stabilizes and formalizes the social relationship that comprises a family.

As marriage is considered a contract, like every contract, there are specific terms and conditions through which the marriage can be revoked. One such process, through which the marriage can be ended, is “Annulment of Marriage.”

Annulment of Marriage

Annulment of Marriage refers to the legal procedure which erases the marriage as if the marriage never took place.  It declares the marriage null and void. The main issue under Annulment of marriage is that whether a valid marriage took place or not. It questions the validity of the marriage, rather than questioning the sustainability of marriage. Annulment is generally filed by those couples who don’t want any further duties or obligations with respect to each other after the marriage is over.

However, it is crucial to understand that the Annulment of Marriage is not the same as Divorce. Though both the terms deal with termination of a marriage, but in reality, they are dissimilar in many ways.

Basis of differentiation

Annulment of Marriage

Divorce

Purpose

To declare the marriage null or void which was invalid

To end a valid marriage.

Status

Single/Unmarried

Divorced

Marriage previously existed

No

Yes

Legality

A high degree of legal procedures

Low degree of legal procedures

Alimony

No (as no obligations or duties exist)

Possible (depends upon the parties)

Witness and Proof

Yes, as it is essential to prove that marriage was null or invalid

No ( if it is a mutual or no-fault divorce)

Grounds-specific

Yes

No (if it is a mutual or no-fault divorce)

Division of Property

No (As after annulment, both the parties lose all their rights on one another)

Yes (Depends on the decision of both the parties)

Children considered Legitimate

Yes

Yes (child custody can remain with both or either with a single parent)

Length of time required for filing

Immediately

No prescribed time period

Grounds of annulling a Marriage

The grounds for annulling a marriage are as follows:

  1. At the time of marriage, if one of the spouses is under the influence of alcohol or drugs. Merely consuming alcohol at the time of marriage is not called “Influence of Alcohol”. The court will consider this ground only if it is proved that all the rituals which took place was unknown to the spouse or he/she was not in the capacity to understand the scenario due to the consumption of Drugs or Alcohol.
  2. If anyone of the spouses was already married at the time of the marriage, if the spouse is married and is marrying for the second time, such a type of marriage is considered as null or void. It cannot be registered or called a legitimate marriage.
  3. If either of the party is too young for the marriage, i.e. he or she is not of the legal marriage age. In such scenarios, the marriage is voidable.
  4. A mentally incompetent person who is unable to understand the necessary foundation of the relationship or a person mentally unstable at the time of marriage. However, if either of the spouses gets mentally unstable after marriage due to some circumstances, then the marriage cannot be dissolved for annulment and divorce would be the only solution left.
  5. Any marriage done under societal pressure is considered to be voidable. Parties involved in the marriage can seek an annulment. Although this shall defer from case to case basis as it is difficult to define ‘societal pressure’.
  6. If either of the parties involved in the marriage, commits a fraud, the other party can ask for the annulment of the marriage.
  7. The law prohibits marriages based on blood relationships. It is known as “Prohibited degree of Consanguinity”.  Marriages between 2nd cousins are a legal relationship, whereas laws relating to marriages between 1st cousins vary in India.
  8. If either of the spouses is subject to life imprisonment by the court. A person who has been convicted for life imprisonment if has recently married, his/her marriage can be legally annulled.
  9. If either of the spouses is physically incapable of consummating the marriage.
  10. Facts are concealed. (For example, concealment of drug addiction or past criminal record of an individual).

Laws relating to Annulment of Marriage in India

Several laws deal with the nullity of marriages in India. They are:

  1. Hindu Marriage Act, 1955 (Amended in 1976)

A Hindu marriage is applicable for annulment if either of the spouses:

  • Due to unsoundness of mind, the person is incapable of giving consent to a marriage
  • Though consent is given, still one of the spouses is suffering from a mental disorder to the extent which may result in difficulties in the procreation of children or is unfit for the marriage
  • Marriage can also be considered as null and void if the person was impotent.
  • Any consent granted under fraud or coercion also declares a marriage null and void.
  • If the woman was impregnated by some other person, then according to the law, the marriage can be annulled in the future.
  1. Indian Divorce Act (1869)  For Christians (Amended in 2001)

A Christian marriage is applicable for annulment if either party:

  • Either party’s former husband or wife was living at the moment and the marriage with the former one was then in force.
  • Either party was impotent (Physically incompetent)
  • Any spouse was insane or had a mental disorder.
  • The parties involved in the marriage are connected through “Prohibited degree of Consanguinity”.
  1. Parsi Marriage Act (1936)

A Parsi Marriage is applicable for annulment if either party:

  • Does not consummate the marriage due to natural causes. Then such a marriage can be declared null and void.
  1. Dissolution of Muslim Marriages Act (1939) and Muslim Personal Law

A Muslim marriage is applicable for an annulment if either party:

  • At the time of marriage is mentally unstable, then a marriage under Muslim Law is declared as null and void. However, there is an exception to it. If the guardian of the insane is ready to take all the monetary obligations of the marriage and considers this marriage to be in his interest and in the interest of the society, then such a marriage can take place.
  1. Special Marriage Act (1954)

This law is applicable to those people, who belong to any religion undergoing a civil marriage.

  • Either of the party has a living spouse.
  • The age of the boy is less than 21 years, and the age of the girl is less than 18 years.
  • The parties involved in the marriage are within the “degree of consanguinity” that is they are related due to blood relations.
  • Either of the party is impotent
  • A marriage under this law is considered to be void if any one of the spouses is of unsound mind or he/she is mentally unstable.

 

Procedure for obtaining Nullity

Step 1: Petition for annulment of a marriage shall be presented before the court of law.

Step 2: The Jurisdiction of the case is decided, depending upon where the respondent and defendant resides or the place where the marriage took place.

Step 3: The court then issue notices to either the respondent or defendant to submit a reply before the court.

Step 4: After hearing both the parties and witnessing the evidence, the court decides the matter and grants a relief accordingly.

Under the Hindu Marriage Act, 1955 and Special Marriage Act, 1954, the court is the Family Court or the City Civil Court. On the other hand, Under the Parsi Marriage Act, the court is the one which is established under the act. It is also important to note that, the court does not decide annulment of Muslim Marriages, but it is instead determined by their religious practices.

Child Status in a Void or Voidable Marriage

  • As per Section 16, the children born in an annulled marriage are considered to be Legitimate. When a child is deemed to be legitimate, he/she is entitled to all the rights that a normal child has who is born in a Legal Marriage.
  • However, such children are entitled only to share the property of their parents and not the extended family. In case, it is a Joint Family Property or ancestral property, then their share would be only in their father or mother’s property. Logically, on the partition of ancestral property, the property falling in the share of the parents of such children is termed as their absolute and self-acquired property.

Rights of Wife

It has always been a topic of debate, whether a wife should be entitled to alumni or maintenance by her husband in cases where a marriage is declared null and void by the court. A woman is considered to be an “ex-wife” if she has been divorced or out of a marriage. According to some recent Supreme Court verdicts, a wife is entitled to maintenance from her husband, if the marriage is declared null and void due to the mischief or the wrongs committed by the husband under Section 125 of Cr.P.C. However, both the husband and wife are not subject to any kind of responsibilities or duties towards each other after the marriage is annulled. The wife and husband are free and

Case Laws

Various judgments have been passed by the Supreme Court in situations where either party demands nullity of a marriage.

T K Surendran Vs P Najima Bindu

IA No. 1/2016

The above case deals with the situation, where the wife filed a petition for annulling a marriage due to the impotence of the husband. Under such situation, the Supreme Court of India granted maintenance rights to the wife by the husband on the grounds that, in the current scenario the marriage is being declared null due to the husband’s wrong or mischief and therefore maintenance would be awarded to the wife under Section 125 of Cr.P.C. Supreme Court upheld the Kerala High Court judgment of making husband liable to pay compensation to the wife.

Kollam Chandra Sekhar Vs. Kollam Padma Latha

In this case, the husband filed the petition seeking annulment of the marriage. The husband stated that the wife was suffering from a disease known as schizophrenia (a mental disability). The Supreme Court in this situation did not granted annulment stating that schizophrenia cannot be a suitable ground to dump the wife. The court further observed that schizophrenia is a mental disability which can be put on par with hypertension and diabetes. Supreme Court stated illness has its problems, but it cannot be considered for declaring a marriage void,especially after a child is born. The Court directed the wife to continue with the treatment.

Conclusion

In India, marriages are governed through different laws; likewise, annulment of marriage is also regulated through various laws. Marriages in India are considered to be a religious practice which is necessary for the future of a family. Therefore, it is essential that they should take place legally and not under force or any societal pressure. Facts of both the girl and boy should not be concealed to lead a happy married life. However, an annulment is a better process to set off a marriage then divorce, if the necessary grounds are available. It is highly advisable to appoint a legal person to go through the process of annulment so that there are no adverse consequences, and the process could be conducted smoothly.

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Dissolution of Marriage - Christian

By: admin Divorce 12 Feb 2020

Divorce is the process of dissolution of the marital relationship between a husband and wife. The divorce among Christian couples is governed under the Indian Divorce Act. The court grants the separation after the husband, wife or both files a petition in the Court of Law. Usually, divorce is followed by alimony, child custody, distribution of debts and property. The Indian Divorce Act was drafted in the year 1869 and inculcated in the Indian legal system. In India, rules and procedure relating to divorce varies according to the community of the husband and wife.

Types of Divorce

As per the Indian Divorce Act, a Christian couple can get a divorce in two ways, i.e., with mutual consent, or either of the spouses may file for a divorce without the consent of the other, depending on a few prerequisites.

Divorce With Mutual Consent

When the couples agree to take a divorce mutually, they file the petition under section 10 A of the Indian Divorce Act before the court. For mutual consent divorce, it requires that the couple should be able to prove that they are not living together for at least two years and they need to submit before the court, that they are not living as husband and wife during that period. Matters relating to maintenance, child custody and property need to be agreed mutually.

There are three aspects as to which the couples have to reach a consensus, and they are:

  • Alimony
  • Custody of the Child
  • Property Rights

Duration                                               

The duration for mutual consent divorce depends upon the decision of the court. Here, the court decided a term during which the couple will give another chance to their marriage. This term varies from six to eighteen months.

Divorce without Mutual Consent

The conditions when either the husband or the wife can file a petitionare explained below:

Petition by the Husband: The husband can file a petition before the district court or high court praying that his marriage needs to be dissolved because his wife is guilty of adultery.

Petition by Wife: The wife can file a petition to the District Court or the High Court for dissolution of marriage. The wife can file such petition under the following circumstance:

  • If her husband has exchanged his profession of Christianity for the declaration of some other religion
  • If the husband went through a form of marriage with another woman
  • If her husband has been guilty of incestuous adultery since the solemnization of marriage
  • In case of bigamy with adultery
  • In case of marriage with another woman with adultery
  • In case of rape
  • In case of adultery coupled with such cruelty as without adultery would have entitled her to a divorce
  • In the case of adultery coupled with desertion, without reasonable excuse, for two years or more

The ground of divorce available to the Christian husband under the law is simply expressed as "adu1tery", no other fact need be proved by the husband. However, the ground of divorce available to the wife is expressed in very narrow terms of the section. To mention the position briefly, the court will require proof to be submitted by the wife on one or other of the following acts by the husband as discussed above.

Documents Required to File Divorce: Every such petition should contain, the facts on which the claim to have such marriage dissolved is founded.

The following documents are required to be furnished for filing a divorce in India according to the Indian Divorce Act, 1869:

  • Address proof of husband
  • Address proof of wife
  • Marriage certificate
  • Four passport size photographs of the marriage
  • Evidence for proving spouses are living separately since more than a year
  • Evidence of the failed attempts of reconciliation
  • Income tax statement for the last two to years
  • Details of the profession and present remuneration
  • Information relating to family background
  • Details of property and other assets owned by the petitioner

Procedure for filing a divorce in Court:

The process for filing a divorce in India is governed by the provision of the Code of Civil Procedure, 1908. The process for seeking a divorce begins by filing a petition, which is followed by affidavits from both the partners in the district court. The petition must state the following details:

  • Name of the parties
  • Status and domicile of the parties
  • Date and place of marriage
  • The permanent address of the place where the parties cohabit
  • Place where the parties last resided together
  • Names of the children from the marriage( if any) with the date of birth
  • The ground of seeking divorce or separation
  • The facts and details by which the petitioner requests the relief
  • The averments made are verified after six months couple has to re-appear in the front of the court after filing a second motion petition for divorce of mutual consent.
  • After hearing from both the husband and wife, if the judge is satisfied that all essential grounds are filing the recruitments and meeting the needs of divorce, the couple grants a mutual divorce decree.
  • Custody of child, alimony to wife and litigation expenses will be considered on issuing a decree for divorce.
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More about Contested Divorce

By: admin Divorce 30 Jul 2019

Divorce is a process to end a marriage legally when either or both the spouses are unable to live together as a couple. Divorce in India can be of two types- contested divorce and divorce by mutual consent.
 
A contested divorce, also known as one-sided divorce, is filed when one of the spouses wish to get a divorce, without the consent of the other spouse. There are several grounds on which a contested divorce can be filed.
 
The reason should be one which can be attributed to the spouse whose conduct, actions, and behaviour has irritated the other spouse to the extent that he/she decides that living together is no longer possible.
 
There are various grounds to seek a divorce from your spouse, some commonly used grounds are:-
 
  1. Divorce on the ground of cruelty.
  2. Divorce on the ground of adultery
  3. Divorce on the ground of the desertion.
 
The above list is not comprehensive; other grounds such as unsoundness of mind, civil death, etc. can be sought to seek and start a contested divorce in India
 
Process for filing Contested Divorce in India:
Find a lawyer with expertise in this subject matter and has integrity and strong court presence. Discuss the facts of the case.
 - A place of marriage
 - Place where spouse last resided together
 - Place where the other spouse resides.
 
  1. Take a call on whether to proceed or not with the divorce.
  2. Drafting of the Contested Divorce petition should be done in precise form.
  3. Process of filing must take place in an appropriate court.
  4. Contested divorce must be filed at either of the following places:
  5. After filing the case, one should check that the matter is listed in the court for the first hearing/ admission hearing.
  6. Court issues the notice/ summons to the other party.
  7. The opposite party will be filing the reply. If the opposite party fails to come, despite service of notice, then the court may proceed the matter in the absence of the other party which is called ex- parte proceeding.
  8. The family court frames issues. The issue refers to the point of adjudication by the court and on which parties have to give their respective evidence.
  9. Evidence of spouse filing petition for contested is done first, then the cross-examination of the witness is done by opposite party lawyer.
  10. Later the matter is out for final arguments.
  11. After arguments, the matter is listed for passing the judgement.
  12. On successfully proving the case, a divorce decree is granted.
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Difference between Mutual Divorce & Contested Divorce

By: admin Divorce 24 Apr 2019

Divorce helps a person to break free from a marital relationship. Marriage is not a contract; it's an important societal institution. The law is interested in the protection of marriage; it does not allow it to be severed only by ordinary wear and tear and choice. To get a divorce one needs to prove specific grounds, for e.g., cruelty/adultery/desertion etc. which are also known as matrimonial offences. People get confused between mutual divorce and contested divorce ending up with gratuitous legal bills. 
 
Mutual Consent Divorce:
A mutual consent divorce is a divorce whereby both the husband and wife mutually agrees to end the relationship and amicably decides the terms and conditions of the divorce. The reason why mutual consent divorce is also called an uncontested divorce is that the husband and wife files a joint divorce petition without the need to contest it before the court.
 
Parties desirous of Mutual Consent Divorce are always perplexed as to how to initiate the process, the role of court, terms, and conditions of mutual consent divorce, issues of maintenance and child custody, duration of mutual consent divorce, a place where Petition for mutual consent divorce can be filed and other allied questions.
 
Contested Divorce:
The court grants a divorce only on proof of fault conducted by one party and the innocence of another party. The most common grounds for divorce are cruelty, adultery, desertion ( it means wilful abandonment done by one spouse to the other without the reasonable cause), etc. Sometimes the conversion of religion and renunciation of the world is also one of the divorce grounds.
As per the law, our legal system does not grant a divorce on the irretrievable breakdown of a marriage or irreconcilable differences. To get divorce one has to prove wrongdoing on the part of the other spouse. The legislature has taken note of this practical reality, and a bill of the same is pending in the Parliament, which would allow a spouse to seek divorce on the ground of inherent incompatibility leading to the breakdown of a relationship.
 
Ground For Divorce: 
Under the Indian law, establishing a divorce ground is not necessary for filing a petition of Mutual Divorce, but for a petition of contested divorce valid ground. There are various reasons for divorce in India which includes adultery, mental or physical cruelty, desertion, conversion of religion, a venereal disease of communicable form, renunciation of the world, mental illness, leprosy and if the spouse is not heard being alive for seven years, etc. The valid reason for divorce in India is mentioned in section 13 of the Hindu Marriage Act, 1955.
 
Maintenance/Alimony, Division Of Property And  Child Custody: 
In a Mutual Consent Divorce, the formalities relating to maintenance/alimony, division of property and child custody, are decided by the husband and wife. However, the issues about alimony/maintenance, division of property and child custody are contested like the divorce petition. In India, for the case of Contested divorce, the lawyers file a separate request to deal with the issues.
 
Reconciliation of the parties: 
There is no concept of a reconciliation between the divorcing couple in a contested divorce. However, there is a period of 6 months in a divorce of mutual consent; it helps to give a chance to the couple some time to rethink on their decision. Under the new divorce law in India, the cooling period may be waived off by the court if it thinks that reconciliation is impossible and a cooling period will only increase their suffering.
 
It is observed that the Mutual Consent divorce is the easiest way to get separated, in this type of divorce both parties work out their terms and conditions on which both the parties agree to part ways- file petition in the court, which is finalised in 6 months.
 
Note: Legato connects you with top divorce advocates in India who can assist you in filing a mutual consent divorce or a contested divorce online in India, whichever applies to your matter. To get connected with divorce top verified attorneys near you send us an email at Support@legatoapp.com.
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