FAQ

Family Lawyers Firm With Over 10+ Years of Experience Between Our Partners

Here are some of the frequently asked Questions and Answer which you may want read to clear your doubts…..

In India Court Marriages are solemnized under the Special Marriage Act, 1954. Irrespective of religion the caste or creed or even the nationality, in India court marriages taking place in front of a marriage officer hold equal value in the eyes of the law.
The procedure of entering into a court marriage is as follow:
Step 1: Notice of Intended Marriage Firstly, a notice of intended marriage is prepared and drafted in a specified format to marriage registrar of the district where one of either party has resided for more than 30 days.
Step 2: Publication of the Notice In this step, a copy of the notice is published by the marriage registrar in his office (where it is clearly visible) inviting objections if any. An original copy of the notice is kept for records by the marriage registrar. If the parties do not have a permanent residence in the place where they are getting the marriage registered then the copy of the notice is sent to the registrar of marriage of the town of permanent residence to be put in his office for any objections.
Step 3: Objection to Marriage An objection to the marriage can be raised within 30 days of publishing the notice under Section 7. Any violation of Section 4 of the Special Marriage Act can lead to abortion of the court marriage procedure. A registrar will look into the objection if any is raised and see if the objection is fitting or not. In case the objection is considered as just then the court marriage procedure is aborted and if the objection is unjust then the process continues as intended. After the expiration of the notice and no doubts were raised within 30 days of publishing the notice, the marriage can be formalized.
Step 4: Declaration by the party and witnesses before the solemnization of marriage can take place declarations must be signed by the bride and groom to be and at least 3 witnesses in front of the marriage officer and these are countersigned by the marriage officer.

Step 5: Solemnization of Marriage A court marriage is solemnized under Section 12 in the office of marriage officer or any place within a reasonable distance to bride and groom and the marriage officer. The marriage is only binding if both the parties in front of the marriage officer and in the presence of 3 witnesses acknowledge to each other in a language that all may understand that: “ I (Full Name), take the (Full Name), to be my lawful (wife/husband)”.

Step 6: Certificate of Marriage Once the marriage is solemnized, the marriage registrar will note down the details of the marriage in the marriage register. If the procedure of marriage is fulfilled in accordance with all the rules and regulations listed in the Act then a marriage certificate is issued. This marriage certificate is proof of a valid marriage of the couple after the signature of the bride and the groom and three witnesses along with the marriage officer.

 

fugiat nulla pariatur.

Both parties should be eligible to marriage if the Bride should be above 18 years of age and the Groom should be above 21 years of their respective ages.

Any marriage celebrated, whether before or after the commencement of this Act, other than by marriage solemnized under the Special Marriage Act, 1872 may be registered by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely,

(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;
(b) neither party has at the time of registration more than one spouse living;
(c) neither party is an idiot or lunatic at the time of registration;
(d) the parties have completed the age of twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship: Provided that in the case of marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law
governing each of them which permits of a marriage between the two; and
(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.  

1) Residence Proof Documents (Any One)
Aadhar Card / Election Card / Leave & License Registered / Passport / Company Residence Proof / Society Certificate / Electricity Bill / Driving License

2) Age Proof Document (Any One)

Birth Certificate / School Leaving Certificate / SSC Exam Certificate / Passport/ Bonafide Certificate / Civil Surgeon Certificate

3) Conditional Documents In Case of Re-Marriage
Court Divorce Decree / Death Certificate

 

*************

 

4) If Marriage Celebrated in Other Form-Common Address Proof- (Any One)
both Aadhar Card address is same / Leave & License Registered in both names / Passport address is same/ Joint Society Certificate.

5) Marriage Proof-Invitation Card / Declaration

 

Any person irrespective of his/her Religion, Caste, Creed can get married under The Special Marriage Act, 1954 they should only fulfill the conditions under this act as under both parties must have legal age of marriage, must not fall under prohibited relationship, must be unmarried or with single status either divorced or widower, either of the party must be resident of that district for minimum period of 30 days…

There are many personal laws for the marriage of Couples in India –

  1. Hindu Marriage Act, 1955 – All the partners of the Hindu Religion including Sikh, Jain &
    Buddhist can perform their traditional marriage Temple Marriage or Arya Samaj
    Marriage. They can register their marriage under The Hindu Marriage Act, 1955.
  2. The Muslim Personal Laws – All the partners of Muslim Religion can perform their traditional  marriage i.e, Nikah. Their marriage will be registered under the Muslim Personal Laws.
  3. Indian Christian Marriage Act, 1872 – All the partners of Christian Religion can perform their traditional marriage i.e, Church Marriage. Their marriage will be registered under the
    Indian Christian Marriage Act.
  4. any other Personal Religion Marriage laws…

Eligibility Criteria for the Marriage of Partners in India – 

  1. Minimum Age Criteria of Male & Female – Both partners must fulfill the minimum age criteria of  Male 21 years & Female – 18 years (Recently, the cabinet raised the minimum age of females from 18 to 21 years).
  2. Forbidden Relationship – Both the partners must not belong to the prohibited relationship or sapinda relationship.
  3. In Case of Previous Marriage – If any of the partners is already married to someone else, they can perform the second marriage. by getting a divorce decree or the death certificate of the spouse.
  4. Consent of Partners – Both the partners must be ready to perform the marriage in India. It is illegal to force anyone to perform the marriage in India.

In 1954, the Indian Government enforced the Special Marriage Act. The act under Section 4 provides that “any two persons” can marry under the Special Marriage Act, 1954 therefore, even a foreigner and an Indian can get their marriage registered under the aforementioned act.  

Concerned over dishonour killings, the CIC has suggested to the central and states governments to include a declaration by the couple who intend to have a court marriage if they apprehend a threat to their life and liberty. Information Commissioner Sridhar Acharyulu also suggested that couples may be allowed to seek police protection from the registrar where marriage is to be performed under the Special Marriage Act. He said such requests should be sent to be station house officer who can inquire into the matter and if, prima facie, the police officer finds the threat to be real, take adequate measures to offer protection to the couple. However, the commission also directed sub-divisional magistrates or marriage officers to ensure that the 30-day notice of the marriage under Special Marriage Act should be widely circulated which mandatory under Section 4(1)(d) of the RTI Act to facilitate the interested persons (including parents or guardians) to know and raise objections, if any, to safeguard the interests of the partners to the proposed marriage. Under the Special Marriage Act, marriage can be solemnised after a copy of the notice in this regard is pasted on the office notice board by the SDM. “Any person may within 30 days of issue of notice, can file objection to the intended marriages. In such a case, the SDM shall not solemnise the marriage until he has decided the objection, within 30 days of its receipt,” the Information Commissioner noted. He said if the SDM refuses to solemnise the marriage, any of the parties may file an appeal within 30 days to the District Court. If no one filed an objection, the SDM solemnises the marriage after 30 days of the notice.

MUTUAL CONSENT DIVORCE

Mutual Consent Divorce was brought by the Indian Parliament vide Amendment in the year 1976 in the Hindu Marriage Act. It has brought relief. 

We recommend that mutual divorce is a better option compared to the contested divorce. It saves time, energy, money, and avoidable toxicity.

Parties desirous of Mutual 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, the place of filing, and other allied questions. All your questions are answered in coming paras.

 

First Step towards mutual consent divorce

Spouses should talk to each other about the future course. If both spouses reach the conclusion that marriage is not workable they should ease out the tension surrounding them. They should accept that their marriage has broken down. Forget the fear of society. Nobody knows the situation better than husband and wife themselves.


Accept that there can be agreement even in disagreement.

 

Custody of Children in Mutual Consent Divorce

If there are child(ren) involved, the spouses should decide amongst themselves about Custody of children and their visitation rights. They can discuss interim custody during summer and winter vacations and other holidays. Both parents are equally competent to take custody of the children. It is the understanding and agreement between parties that prevail. Parties can have an understanding of joint custody or shared parenting in the mutual consent divorce process. This can save parents and children from avoidable suffering. 

Financial Settlement in Mutual Consent Divorce

The next important aspect is a financial settlement. There are various aspects of financial settlement which includes alimony, maintenance, house, education expenses, higher education expenses, a marriage of children, stridhan, joint investments, joint accounts and many other. As mutual consent divorce lawyers, we provide a platform for parties to discuss these issues in a calm atmosphere and reach their own solutions. We as mutual consent divorce lawyers provide different options using our vast experience in the field to bring settlement. Sometimes, emotions between spouses are running so high that logic fails.

Place of filing Mutual Consent Divorce

  • Place where marriage had taken place
  • Place where husband and wife last resided together.
  • Place where the wife is residing at the time of filing of the Petition

 

Step by step procedure for Mutual Consent Divorce –  

First Motion

Once the petition for divorce by mutual consent is filed, the presence of parties is required in the Court for the recording of the statement. In the event one of the parties is unable to come, such a party can appear through power of attorney. Such power of attorney preferably should be a family member of the spouse. Once the statement is recorded, it is commonly called First Motion has been passed –

Second Motion

After passing of first motion, parties are called upon to wait for six months period before moving the Petition for the second motion. This period is extendable up to eighteen months. This six months period is generally called a cooling-off period. Six months period are given to parties to think about their relationship again. It is given for reconciliation. Statement of parties is recorded by the Court. Once the statement of a minimum of six months period is recorded, the Second motion is passed by the Court. Thereafter decree of divorce is given. Marriage gets dissolved.

 

Waiver of Time/Cooling-off Period

This six months period can be waived by the concerned family Court upon filing an Application for a waiver of six months. Family Court has the discretion to waive off the period. Thus, a time period of six months can be waived off and may be reduced to as few as 15 days or a month or so.

During the period of six months i.e. before moving the second motion, both parties have the liberty to withdraw their consent for divorce.

 

Contested Divorce requires experience and lateral approach. Contested Divorce implies party desirous of divorce approach the concerned Family Court for the dissolution of marriage. Spouse seeking divorce has to take one of the grounds provided under the law of for contested divorce.

There are different laws dealing with contested divorce for different section of the Society.

Hindu Marriage Act, 1955 provides ground for divorce for Hindus which includes Sikh, Jain and Budh religion.

Indian Divorce Act, 1869, provides grounds for divorce for Christian.

Special Marriage Act provides grounds for divorce for people married under civil law and whose marriages are registered under Special Marriage Act,1954.

Grounds for Contested Divorce

  1. Divorce on the ground of Adultery
  2. Divorce on the ground of Cruelty
  3. Divorce on the ground of Desertion
  4. Divorce on the ground of Conversion to another religion
  5. Divorce on the ground of Unsoundness of mind or mental disorder
  6. Divorce on the ground of Virulent and Incurable form of leprosy
  7. Divorce on the ground of Venereal disease
  8. Divorce on the ground of Renounce the World
  9. Divorce on the ground of Not heard for a period of seven years or more
  10. Beside above, there are couples of additional grounds for contested divorce available only to female.

APPROACH

Every case has its own unique situation and circumstances. Every individual is different from the other. So are there experiences. In our journey of now close to two decades, we have seen, met and dealt with thousands of contested divorce cases. We have followed and improved our ability to gel and aligned with view point of spouse seeking or defending contested divorce. This approach helps us to present the case as you suffered and faced during your matrimony. We being aware and abreast of changing nuances of law and the Court rooms, present the case accordingly. As lawyers, we adopt this approach but never abandon duty to engage in the objective manner considering your ultimate interest at the core of the approach. We know the importance. Lives are stake. We take up the responsibility with commitment and sincerity. We try to do complete justice in the journey.

COMMON GROUNDS FOR DIVORCE

We found that bulk of contested divorce cases are filed on the ground of CRUELTY, DESERTION & ADULTERY.

Let’s briefly understand, it basic meaning in the context of a contested divorce case

Cruelty: This phrase is not defined under the law. As a matter of fact, it cannot be defined. It’s a relative term that changes from one individual to another. This term need to be understood from the context of parties involved, their education and background. What may be a cruelty to one may not be for the other. Generally speaking, it is such a behavior of other spouse that makes it difficult or improbable for the other spouse to be reasonably expected to live with such spouse. There are several judgements that has been passed which has evolved the concept of cruelty as a ground for divorce. Samara Ghosh judgement given by the Hon’ble Supreme Court has laid a list though not exhaustive covering major aspect of cruelty.

Desertion: It implies a continuous separation for a period of two years before filing the petition for divorce on the ground of desertion. But mere separation it self does not means desertion. It is further to be shown that the other spouse have abandoned the relationship without any justifiable reason.And also importantly, Spouse seeking divorce has made efforts to reconcile and bring back the spouse. Desertion involves an intention on the part of the spouse leaving the matrimony with intention of not joining or resuming the matrimony.

Adultery: It simply means that the spouse against whom charges are made has indulged into a physical relationship with a person other than the spouse. Law calls upon for strict evidence in this regard. There is a difference between involvement in a relationship with another person and committing adultery. Involvement in a relationship without evidence of adultery may bring home the case of divorce on the ground of cruelty.

CONTESTED DIVORCE PROCEDURE

    1. Contested Divorce proceedings commences with filing of Divorce petition. Family Court causes a notice to be served on the opposite party for appearance.
    2. On receipt of summons, opposite party has to appear in person and/or through divorce lawyer and file the response.
    3. Court may try to resolve the differences between parties to start with by conducting conciliation or sending the matter to counselor/mediation center. If there is no settlement between parties, divorce case proceeds as per procedure.
    4. Once initial allegation and response and counter allegations process are over, which is called pleading, case is set up for evidence after determining issues of controversy between parties.
    5. Party initiating contested divorce has to start with the evidence first. Other party is given a chance to cross examination witness/es of the opposite party.
    6. After that responding party i.e. Respondent has to lead evidence. Similarly, cross examination process is conducted by the divorce lawyer of opposite side.
    7. After conclusion of evidence, Final arguments are advances by divorce lawyers from both sides.
    8. Then the court pronounces judgement. If party initiating divorce is able to prove the case, Family Court/Civil Court will grant the decree of Divorce.

Contested divorce requires expert divorce lawyers either in prosecuting or defending divorce case. Such expert divorce lawyer guides, strategize and plan the whole action. Effective planning by divorce lawyers increases the probability of success in the trial of the contested divorce.

Contested Divorce is a long process requiring thorough professional work and approach. Good Divorce lawyers take through these challenging and arduous task with expertise and credibility being your counsel through turbulent and emotional time.

Contested Divorce is challenging in terms of time too. We have learnt the process of the early disposal of the case by engaging into different ways and means. We can reduce the normal time without expertise and experience.

ANNULMENT OF MARRIAGE

Annulment of marriage is moved on certain grounds specified in various matrimonial laws. 

Section 12 of the Hindu Marriage Act lays down the grounds on which petition for annulment can be filed. 

Grounds for Annulment of Marriage in India

There are four broad grounds for annulment of marriage in India.

They are explained below.

 

Marriage not consummated owing to the impotency of the Respondent

This ground of annulment of marriage is available to either of the spouse to present the petition. Husband or wife can initiate the petition for annulment against the other. Two conditions are required to be met for the purpose. They are:-

Firstly, Marriage has not been consummated

Secondly, Husband or wife is impotent.

 

Marriage is in contravention of the condition specified in section 5(ii) of the Hindu Marriage Act

Section 5 (ii) of the Hindu Marriage Act lays down three situations or grounds on which annulment can be sought. Such ground and conditions are when marriage had taken place when both parties were

  1.  incapable of giving a valid consent to it in consequence of unsoundness of mind
  2. Suffering from mental disorder
  3. subject to recurrent attacks of insanity

 

Consent is obtained by fraud

In this case, party seeking annulment has to provide either of the following:

  1. Consent to the marriage has been obtained by fraud
  2. Fraud committed by the Respondent as to the nature of ceremony of marriage or any material fact or circumstances concerning the Respondent.

 

Law prescribes time limitation in proceeding with the annulment of marriage on the ground of fraud. Such annulment petition has to be filed within one year of the discovery of the fraud committed by the Respondent.

Illustration: A represents her age to be 24 years to B. B proceed for the marriage. After about six months of marriage, B came to know that the real age of the A is 30 years and not 24 years. Now, B has to file the petition for annulment of marriage within one year of such disclosure. Thereupon, family court will decide the issue whether there was such misrepresentation. The test is had B been aware of actual age of the A at the time of marriage, would he had given the consent for marriage. This is material fact concerning A.

 

Respondent was already pregnant at the time of Marriage

Once a petitioner is successful in proving its case, marriage is declared null and void. Resultantly, the court considers that the marriage has not taken place at all and the tag of the divorcee is not attached. Annulment of marriage is very important in the scheme of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized on the strength of fraud or where the marriage is solemnized despite the fact that the responding spouse was already married.

We at divorce lawyers having years of service knows what it takes to bring home the case of annulment of marriage. A good divorce lawyers know how necessary facts need to be pleaded and evidence marshalled to make home the grounds for the annulment of marriage. Divorce Lawyers (DL) experience in successfully managing the same is unmatchable.

 

Introduction to Maintenance

This is an integral part of all matrimonial proceedings. Application for maintenance can be moved by either of the spouses who do not have sufficient means to maintain him/her self. Maintenance can also be classified into two parts:

 

Interim Maintenance

Such maintenance is provided during the pendency of the case in the court. The underlying idea behind giving such maintenance is that one party should not lose and stand on a weaker footing at the time of contesting the case. Quantum of such maintenance is dependent on a variety of factors but the most important aspect is the status of the parties prior to the filing of the case and the income/salary of the spouse against whom such maintenance is claimed. The court always tries to bring both the party at equal platform and footing.

 

Permanent Maintenance

It is awarded at the time when the whole case is finally decided. It could be periodical or monthly depends upon the facts and circumstances of the case.

 

LAWS GOVERNING MAINTENANCE CASE

There are various laws that govern the aspect of maintenance in India. Such laws are under:

  • Section 125 Cr.P.C Maintenance
  • Section 24 Hindu Marriage Act
  • Section 18 Hindu Adoption and Maintenance Act
  • Provisions under the Domestic Violence Act

 

Each case and situation calls for initiating a proceeding under any one of the above law. At times, claim for maintenance is filed under more than one law. Thus, the petitioner can file a claim for maintenance under more than one provision like under section 125 Cr.P.C as well as under section 24 of the Hindu Marriage Act. Practically speaking, the law is settled that the Petitioner would be entitled for higher maintenance if two courts have passed different amounts towards maintenance to the wife. But, the wife will not be entitled to have a maintenance of total sum from two courts. Thus, Court in 125 Crp.C proceedings grants 20,000 rupees while in proceedings under section 24 grants 15000 per month then wife will be entitled to have Rs.20,000 and not 35000 per month. The higher amount is to be paid and not cumulative.

 

WHO CAN FILE A CASE FOR MAINTENANCE

A case for maintenance in the matrimonial matter can be filed by:-

  • Wife For Herself
  • Wife For Children
  • Children
  • Husband

 

WHERE CAN I FILE A CASE OR CLAIM FOR MAINTENANCE

 Under section 125 Cr.P.C

  • Place where the wife is residing
  • Place where Respondent is residing

 

Under Hindu Marriage Act

An application under section 24 HMA can be filed only where proceedings for Divorce/Judicial Separation/ Restitution of Conjugal rights are pending.

 

Under the Domestic Violence Act 

  • Place where complainant herself resides either permanently or temporarily
  • Place of work of the complainant either business or employment
  • Place where Respondent resides or carries on business or works
  • Place where the cause of action had taken place

 

What are the factors considered by the Court while granting the maintenance?

There are several factors that are considered by the Court while granting maintenance. They are listed below. Notably. This list is only indicative and not exhaustive.

  •  The income of the husband
  • The income of the wife, if any
  • Background and status of parties
  • Movable and immovable properties
  • Life style
  • Education
  • Investments
  • Expenditure on household
  • Expenditure towards education and School of the children
  • Age of dependent children
  • Model of Car being used
  • Mode of travel

 

Is there any formula on the basis of which maintenance is calculated?

There is no fixed formula to determine maintenance in India. It is difficult to lay. Recently, the Supreme Court said that it should be at least 25 % of the income of the husband. Also, often formula as laid Annurita case is applied that says that earning members will be entitled to one extra portion of himself after equal appropriation of the income amongst all family members. It would be safe to say that maintenance may vary can be from a lower range of 25 percent to about 35 percent of the income.

 

What documents are required to be filed by parties in a case for maintenance?

Both parties are required to give financial disclosure of their assets and liabilities. Hon’ble Supreme Court of India in Rajnesh versus Neha made it mandatory for both spouses to file their respective affidavit of income detailing all sources of income, expenditure, liabilities, etc. Both husband and wife are required to furnish the following documents amongst others:

  • Salary Slips (of six months)
  • Income tax return of three years
  • Form 16/Cost To Company(CTC)
  • Bank accounts statement of three years(All bank accounts

We at Divorce Lawyers have been successfully prosecuting as well defending a claim for maintenance. We believe that the determination of maintenance decides the course of the litigation as well as its pace and longevity. Therefore, being top maintenance lawyers, we have polished nuances to deal with complex issues of determination of maintenance. The art of practical advocacy as top maintenance lawyers are being practiced and implemented every day in and out. This results in our huge success in matrimonial law.

 

.

CHILD CUSTODY LAW & VISITATION RIGHTS

Child custody law and its genre visitation rights are germane in divorce cases.  Child Custody is the most important and complex issue.  In Court room, it’s like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.

Law Relating to Child Custody in India

Law relating Child Custody can be traced in India under following:-

  • Section 26 of the Hindu Marriage Act
  • Section 21 of the Domestic Violence Act
  • Section, 7, 12, 25 under the Guardian and Wards Act-1890

Generally speaking, Guardian and Wards Court has power to grant:

  • Permanent Custody
  • Interim Custody
  • Visitation Right

Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favour of one spouse as against the other is WELAFRE OF THE CHILD.

Important factors, amongst other, which are considered by the Court in Child Custody case while awarding the same are as under:

  1. Education of the father
    b. Education of the Mother
    c. Family background of the Husband which includes financial and educational background.
    d. Family background of the Wife
    e. Financial Background of the Husband and Wife
    f. Wishes of the minor
    g. Better chances of overall development of personality of child.
    h. Conduct of the parties

 

TYPES OF CHILD CUSTODY RELIEF

Child Custody relief in a contested divorce proceedings can be broadly categorized as under:

  • Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.

 

  • Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the

 

  • Permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court. The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.

In nut shell, we can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.

A good child custody lawyer in India is a one who is not only aware about the laws and rules and plethora of cases but also has the ability to bear the emotional and psychological need of either of the father or mother. A good Child custody lawyer has to handle the legal and emotional issues with utmost precision. Custody lawyer have to act not only as a professional but also a human being with the heart of parent to fight out the child custody case in the Court of law.

 

Domestic Violence 

Domestic Violence law in India is governed by an Act of the Parliament i.e. Protection of Women from Domestic Violence Act, 2005. It provides variety of rights to women victim of Domestic Violence.

Such rights include claim of monetary relief, rights to residence, compensation for domestic violence, protection order, and child custody amongst other reliefs.

Domestic violence Act has come into force with objective of expeditious disposal of the claim of women who are victim of domestic violence. Domestic violence complaint is filed in the Court of Magistrate who is empowered to pass ex parte orders. Domestic violence has come in to force with objective of providing economic justice and independence to women victim of domestic violence.

Domestic violence law specifically provides the right to residence. Right to residence includes in living in the shared house hold irrespective of fact whether wife has right, title or interest over the property/residence. This specific provision is inserted in Domestic Violence law to arrest the menace of abandoning the woman and children, if any, without roof and shelter in case of matrimonial disputes. DV Act also provides for alternate accommodation. Hence, law cast a mandate on the husband to provide residence to the wife. Such residence can be shared house hold where husband and wife lived together and made such house as their matrimonial house. Alternatively, law mandates husband to provide alternate residence comparable to the one previously enjoyed by the wife while living together.

Case under domestic violence law is initiated by filing a complaint detailing all events of domestic violence before the Court of magistrate. Such complaint is generally accompanied by interim application. Magistrate trying the complaint is empowered to execute summons of the case through protection officer or by the concerned police station. In dire case requiring urgent relief, court has power to grant ex parte order (order in the absence of the other party). For example, wife is abandoned by the husband and she is in immediate danger of loss of roof over her head. She can approach to the Court for directions that she may not be evicted from the house rather she should be allowed to stay in the shared house hold or matrimonial home. Court under such grave circumstances is competent to pass ex parte order restraining the husband or any other family member from dispossessing her from the shared house hold or matrimonial home.

Another important feature of Domestic violence law is that relief can be claimed not only against husband but also against in laws.

Earlier there were views the domestic violence complaint cannot be filed against women. Rationale behind such views was that Domestic violence is for the protection of women. However, this controversy is set to rest by a decision of Hon’ble High Court of Delhi. Hence, complaint for domestic violence is maintainable against female or women.

Scope of law is further widened wherein it is clarified that not only wife but any other female living in domestic relationship can seek remedy. Thus, sister or mother can claim relief against son or father and/or brother for the relief.

Domestic violence law for the first time recognizes existence of legal rights to female who are not married to claim monetary relief, residence, compensation etc from her partner. In other words, women living as “live in relationship” has been given benefits, protection, right and claim under domestic violence law.

Law relating to Domestic violence has developed considerably. Yet, law is still in formative years with different judgments and case laws are evolving. We have domestic violence lawyers. Such domestic violence lawyer keep tab and updated with changing law for the successful prosecution or defense of the domestic violence complaint. Good domestic violence lawyer ensure maximum benefits to victim of domestic violence. In defense, good domestic violence lawyer ensure best strategy to counter the claim and get justice in cases of motivated domestic violence complaint.

498 A |Dowry| Anticipatory Bail

498A |Dowry| Anticipatory Bail are part and parcel of a matrimonial dispute. Let us understand the meaning and implementation part of 498A, Dowry & Anticipatory bail in the same context.

498 A IPC:

498 A was inserted into criminal law to prevent the social evil of dowry. Its main objective was the eradication of dowry in the Indian social set up. 498A IPC made demand of dowry by the husband or his relative a criminal offence. It covers action of demand of dowry and cruelty met out to the wife. Cruelty is incorporated in a broad and liberal sense. Cruelty can be mental or physical. Law prescribes three years maximum punishment for the offence.

Section 498A in the Indian Penal Code

 498A Husband or relative of husband of a woman subjecting her to cruelty.

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished ­ with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation For the purpose of this section, Cruelty means

  • any willful conduct which is of such a nature as is likely to drive the  woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
  • harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

USE & MISUSE OF 498A IPC

Law regarding criminalizing offence of dowry was made with correct intent and for a larger social objective. In the initial days of the passing of law, First Information Report (FIR) used to be registered instantly upon the complaint of the wife. There used to be imminent threat of arrest of person against whom allegations are levelled in the Complaint by wife. Such person usually included husband, father in law, mother in law, sister in law. In some case, extended family members are also made accused. Balance in the society was being tried to achieve with the intervention of the State in Family matter. Law has brought chilling effect on the offender.

But, after few years, law had started to be misused as much as it was used. In view of the misuse, many people suffered through Jail. Person accused of the offence had recourse to the Justice system by seeking Anticipatory Bail. Even getting Anticipatory Bail was not easy.

In view of striking balance between use and misuse, it became mandatory that mediation and counselling between the complainant wife and her husband and his family members are done. Objective was to ensure that institution of marriage should not collapse. And general disputes between husband and wife or in laws does not lead to immediate arrest.

Dowry still remains a reality in the Indian Society in many way even today. And thus need to balance remain. Hon’ble Supreme Court of India has laid down guidelines from time to ensure that the false complaints or misuse of 498A is dealt adequately. Comprehensive guidelines were laid down in the case of Arnesh Kumar versus State of Bihar in the year 2014. Many says that law to curb the menace of dowry has been diluted. Many see it as a welcome step to prevent the misuse. Both point of view has its own merits and demerits.

How to lodge a Complaint for Dowry

Complain for Dowry or 498A can be lodged before concerned Crime against Women Cell (CAW), Women Cell, Manila Thana as existing against the husband and his family members who have committed offence

Upon the receipt of the complaint of harassment, husband and her family members are summoned before the concerned Authority.

Firstly, efforts are made to counsel parties to reconcile their differences. Preservation of marriage is always considered as a priority.

Secondly/ alternatively, upon failure of efforts of reconciliation, parties are counselled for amicable resolution of their dispute by agreeing for mutual consent divorce on terms and conditions as mutually agreeable to both sides.

Consequent upon failure of both possibilities, complaint is referred for the registration of FIR.

Anticipatory Bail in Dowry/498A 

Husband and his family may be required to seek anticipatory bail against the offence of 498A/Dowry. Such anticipatory bail application are filed before the Court of Session judge as a normal practice though High Court has concurrent Jurisdiction. Anticipatory bail are decided by the Court as according to the merits of each case.

Investigation Authority i.e. Police is also mandated to bound down the accused by taking undertaking under section 41 A of the Code of Criminal Procedure (Cr.P.C.). Use of 41 A is necessitated since guidelines are laid down by the Hon’ble Supreme Court in the case of Arnesh Kumar as mentioned above.

Police is required to file charge sheet after investigation of the case. Thereafter, matter goes to the Court (Mahila Court) where the process of cognizance, summoning, charge and trial take

Judicial Separation is generally a step towards divorce. Section 10 of the Hindu Marriage Act provides grounds for judicial separation. It is akin to grounds for divorce. Grounds, process and procedure for Judicial Separation is same as in case of contested divorce. On successfully proving case for judicial separation by party initiating the process, Court passes decree of judicial separation. It implies that party may live separately. Standard of proof in case of judicial separation is lesser in degree as compared to contested divorce. Judicial Separation provides ground for divorce in the event of no cohabitation between spouses in a period of one year after the passing of decree of judicial separation. It is also permitted subject to the approval of the Court that at appropriate stage, on application by the party filing case of judicial separation to convert to divorce. Timing of such application is a vital factor.

Restitution of Conjugal Rights

It is another important remedy provided by law to the spouses. In cases, where one party leave the company and society of the other spouse, then a case for restitution of conjugal rights can be filed in the Court. The Court directs the defaulting spouse to join the company of the other spouse unless there is a strong reason justifying such withdrawal. This remedy is often used strategically in fighting matrimonial cases.

Divorce Petition, contested divorce cases half of the battle is won on the basis of the sound drafting of the Divorce Petition. We use all of our divorce expertise in drafting of the Petition and lay a strong foundation for the entire contested divorce case.

Divorce is a complex issue and hard core emotions are involved. Divorce is not a dispute for profit but personal battles fought in the Court. Effective drafting involves lot of care and conscious efforts need to be put in balancing the legal and personal interest of clients.

Our experience leads to one conclusion that each case is different and so are the issues involved in the divorce case. While drafting divorce Petition, it is all very important to have all issues arising out of real facts so that it should give one never ending and clinching feeling that the divorce pleading is based on true facts and is not a divorce petition template or one general standard form of Divorce Petition.

We are conscious of the laws regarding divorce and constant and perennial development related to divorce laws in India and thus drafting conforms to the legal requirements of the case.

You can rely on our experience in getting divorce Petition drafted which echoes your true emotions!!!!

Counseling and Mediation

Matrimonial disputes are related with emotions, feelings, ego, and psychological reasons. You would not deny that most difficult thing is to predict the nature and behavior of other human being. We all have tendency of assuming that what we are doing and thinking is correct while others are not doing right. Although, some time we try to rationalize things or making it logical. We pretend to be good listener but we are listening to counter other to score a goal to boost our inflated ego. We are not listening to listen other’s point of view. That may help us in resolving issue. Why don’t we accept we are imperfect human beings?

Relationship can work more positively if we understand the perception of our spouse. Some time such basic things are ignored by us. AT THIS TIME, there is a need of a Counselor or mediator. Such counselor or mediator has no concern or interest with either of the spouse. Such counselor or mediator can understand your problem objectively. They can suggest practical ways to resolve issues and understand the perception of each other. Counselor and mediator may act as a miracle and save the most beautiful relationship of “marriage”.

There may also be cases wherein it is manifestly clear that relationship of husband and wife will not work. Spouses have deep abhorrence against each other for variety of reasons. At those juncture, after fully understanding the impossibility of reconciliation, counselor or mediator would recommend for divorce.

It is entirely into hand of spouses that they understand the fact that divorce is the best remedy in their larger future interest. They can work out their divorce in such scenario in easier manner. Spouses can reach to amicable settlement. Every issue can be resolved by talking. Let the talk to Walk!!! Tough decisions like child custody and visitation rights can be discussed. Mediator or counselor would take care of your decision and facilitate in reaching solution. You would not imagine that you have planned your divorce and worked out in very positive atmosphere to reach to Amicable Settlement.

You are saved from acrimonious litigation saving time, cost and energy. You walk out with held high and can still have healthy relationship.

Thus mediation can work wonders. You are solving your own problem with the intervention of counselor or mediator. As we say, live happily or part amicably!!!

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur.

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur.

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur.

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur.

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur.

Toggle Content
Toggle Content
Toggle Content

Domestic Violence 

Domestic Violence law in India is governed by an Act of the Parliament i.e. Protection of Women from Domestic Violence Act, 2005. It provides variety of rights to women victim of Domestic Violence.

Such rights include claim of monetary relief, rights to residence, compensation for domestic violence, protection order, and child custody amongst other reliefs.

Domestic violence Act has come into force with objective of expeditious disposal of the claim of women who are victim of domestic violence. Domestic violence complaint is filed in the Court of Magistrate who is empowered to pass ex parte orders. Domestic violence has come in to force with objective of providing economic justice and independence to women victim of domestic violence.

Domestic violence law specifically provides the right to residence. Right to residence includes in living in the shared house hold irrespective of fact whether wife has right, title or interest over the property/residence. This specific provision is inserted in Domestic Violence law to arrest the menace of abandoning the woman and children, if any, without roof and shelter in case of matrimonial disputes. DV Act also provides for alternate accommodation. Hence, law cast a mandate on the husband to provide residence to the wife. Such residence can be shared house hold where husband and wife lived together and made such house as their matrimonial house. Alternatively, law mandates husband to provide alternate residence comparable to the one previously enjoyed by the wife while living together.

Case under domestic violence law is initiated by filing a complaint detailing all events of domestic violence before the Court of magistrate. Such complaint is generally accompanied by interim application. Magistrate trying the complaint is empowered to execute summons of the case through protection officer or by the concerned police station. In dire case requiring urgent relief, court has power to grant ex parte order (order in the absence of the other party). For example, wife is abandoned by the husband and she is in immediate danger of loss of roof over her head. She can approach to the Court for directions that she may not be evicted from the house rather she should be allowed to stay in the shared house hold or matrimonial home. Court under such grave circumstances is competent to pass ex parte order restraining the husband or any other family member from dispossessing her from the shared house hold or matrimonial home.

Another important feature of Domestic violence law is that relief can be claimed not only against husband but also against in laws.

Earlier there were views the domestic violence complaint cannot be filed against women. Rationale behind such views was that Domestic violence is for the protection of women. However, this controversy is set to rest by a decision of Hon’ble High Court of Delhi. Hence, complaint for domestic violence is maintainable against female or women.

Scope of law is further widened wherein it is clarified that not only wife but any other female living in domestic relationship can seek remedy. Thus, sister or mother can claim relief against son or father and/or brother for the relief.

Domestic violence law for the first time recognizes existence of legal rights to female who are not married to claim monetary relief, residence, compensation etc from her partner. In other words, women living as “live in relationship” has been given benefits, protection, right and claim under domestic violence law.

Law relating to Domestic violence has developed considerably. Yet, law is still in formative years with different judgments and case laws are evolving. We have domestic violence lawyers. Such domestic violence lawyer keep tab and updated with changing law for the successful prosecution or defense of the domestic violence complaint. Good domestic violence lawyer ensure maximum benefits to victim of domestic violence. In defense, good domestic violence lawyer ensure best strategy to counter the claim and get justice in cases of motivated domestic violence complaint.

498 A |Dowry| Anticipatory Bail

498A |Dowry| Anticipatory Bail are part and parcel of a matrimonial dispute. Let us understand the meaning and implementation part of 498A, Dowry & Anticipatory bail in the same context.

498 A IPC:

498 A was inserted into criminal law to prevent the social evil of dowry. Its main objective was the eradication of dowry in the Indian social set up. 498A IPC made demand of dowry by the husband or his relative a criminal offence. It covers action of demand of dowry and cruelty met out to the wife. Cruelty is incorporated in a broad and liberal sense. Cruelty can be mental or physical. Law prescribes three years maximum punishment for the offence.

Section 498A in the Indian Penal Code

 498A Husband or relative of husband of a woman subjecting her to cruelty.

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished ­ with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation For the purpose of this section, Cruelty means

  • any willful conduct which is of such a nature as is likely to drive the  woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
  • harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

USE & MISUSE OF 498A IPC

Law regarding criminalizing offence of dowry was made with correct intent and for a larger social objective. In the initial days of the passing of law, First Information Report (FIR) used to be registered instantly upon the complaint of the wife. There used to be imminent threat of arrest of person against whom allegations are levelled in the Complaint by wife. Such person usually included husband, father in law, mother in law, sister in law. In some case, extended family members are also made accused. Balance in the society was being tried to achieve with the intervention of the State in Family matter. Law has brought chilling effect on the offender.

But, after few years, law had started to be misused as much as it was used. In view of the misuse, many people suffered through Jail. Person accused of the offence had recourse to the Justice system by seeking Anticipatory Bail. Even getting Anticipatory Bail was not easy.

In view of striking balance between use and misuse, it became mandatory that mediation and counselling between the complainant wife and her husband and his family members are done. Objective was to ensure that institution of marriage should not collapse. And general disputes between husband and wife or in laws does not lead to immediate arrest.

Dowry still remains a reality in the Indian Society in many way even today. And thus need to balance remain. Hon’ble Supreme Court of India has laid down guidelines from time to ensure that the false complaints or misuse of 498A is dealt adequately. Comprehensive guidelines were laid down in the case of Arnesh Kumar versus State of Bihar in the year 2014. Many says that law to curb the menace of dowry has been diluted. Many see it as a welcome step to prevent the misuse. Both point of view has its own merits and demerits.

How to lodge a Complaint for Dowry

Complain for Dowry or 498A can be lodged before concerned Crime against Women Cell (CAW), Women Cell, Manila Thana as existing against the husband and his family members who have committed offence

Upon the receipt of the complaint of harassment, husband and her family members are summoned before the concerned Authority.

Firstly, efforts are made to counsel parties to reconcile their differences. Preservation of marriage is always considered as a priority.

Secondly/ alternatively, upon failure of efforts of reconciliation, parties are counselled for amicable resolution of their dispute by agreeing for mutual consent divorce on terms and conditions as mutually agreeable to both sides.

Consequent upon failure of both possibilities, complaint is referred for the registration of FIR.

Anticipatory Bail in Dowry/498A 

Husband and his family may be required to seek anticipatory bail against the offence of 498A/Dowry. Such anticipatory bail application are filed before the Court of Session judge as a normal practice though High Court has concurrent Jurisdiction. Anticipatory bail are decided by the Court as according to the merits of each case.

Investigation Authority i.e. Police is also mandated to bound down the accused by taking undertaking under section 41 A of the Code of Criminal Procedure (Cr.P.C.). Use of 41 A is necessitated since guidelines are laid down by the Hon’ble Supreme Court in the case of Arnesh Kumar as mentioned above.

Police is required to file chargesheet after investigation of the case. Thereafter, matter goes to the Court (Mahila Court) where the process of cognizance, summoning, charge and trial takes place.

 

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur.

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur.

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur.

don’t wait any longer

Contact Our Expert Lawyers Today!

Contact an experienced lawyer to fight for your case.

Call Now Button