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01
Registered Court Marriage
The Special Marriage Act, 1954 & The Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act, 1998
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.
Marriage as per your Personal Laws & Marriage Certificate
There are many personal laws for the marriage of Couples in India –
- 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. - 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.
- 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. - any other Personal Religion Marriage laws…
Eligibility Criteria for the Marriage of Partners in India –
- 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).
- Forbidden Relationship – Both the partners must not belong to the prohibited relationship or sapinda relationship.
- 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.
- 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.
- A marriage certificate in Maharashtra is a legal document certifying a bride and bridegroom’s matrimonial bond. The State Government concerned is empowered to grant marriage certificates in any State of India. The District Marriage Registrar shall issue a marriage certificate, as per religious marriage and special marriage laws. In India, under two statutes, namely The Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act, 1998 and the Special Marriage Act, 1954 marriage registration can be done.
02
Law of Divorce & Maintenance
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
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
- Divorce on the ground of Adultery
- Divorce on the ground of Cruelty
- Divorce on the ground of Desertion
- Divorce on the ground of Conversion to another religion
- Divorce on the ground of Unsoundness of mind or mental disorder
- Divorce on the ground of Virulent and Incurable form of leprosy
- Divorce on the ground of Venereal disease
- Divorce on the ground of Renounce the World
- Divorce on the ground of Not heard for a period of seven years or more
- 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
- Contested Divorce proceedings commences with filing of Divorce petition. Family Court causes a notice to be served on the opposite party for appearance.
- On receipt of summons, opposite party has to appear in person and/or through divorce lawyer and file the response.
- 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.
- 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.
- 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.
- After that responding party i.e. Respondent has to lead evidence. Similarly, cross examination process is conducted by the divorce lawyer of opposite side.
- After conclusion of evidence, Final arguments are advances by divorce lawyers from both sides.
- 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.
03
Registration of property
Importance of registering a property
Registering your immoveable property should be the top priority when you buy a house, commercial shop or land as it proves your legitimacy to carry out any transaction. A person is considered the legal owner of a property only after he gets the property registered in his name.
If you fail to register the property, the previous owner or the developer will be considered the legal and rightful owner. Legally, the sale of property won’t be considered valid till the sale deed is duly stamped and registered. The basic purpose of registration is to record the ownership of the flat.
The seller of the property is called the “transferor” and the purchaser is called the “transferee”. The purchaser of the property pays the stamp duty and registration charges.
If the sale deed is duly stamped and registered, then no right, title or interest in an immoveable property can be transferred. In case of a dispute, you will not have any rights on the property if it is not registered in your name.
Stamp duty charges:
Stamp duty is a type of tax collected by the government under its jurisdiction for a transaction of property. The types of property may include agricultural, independent houses, flats, commercial units, etc. The percentage of stamp duty levied varies in different states.
Without the payment of this stamp duty, your solicitor will not be able to officially register your new house in your name, even when the house is transferred within the family. Stamp duty is normally a certain percent of the total cost or agreement value of the property. For instance: Stamp duty in Mumbai is 6 percent of the total cost or sale consideration of the property. The final amount is calculated on the basis of the agreement value, or the ready reckoner rates decided by the state government, whichever is higher. The ready reckoner rates are revised every year during the first week of January.
Registration Fee
According to Section 17 of the Indian Registration Act, 1908, it is mandatory to register the documents regarding the transfer, sale or lease of property. For registration, the original document printed on one side along with two photocopies of the original; have to be submitted to the registering officer. The registration procedure also requires the presence of two witnesses and the payment of the appropriate registration fees.
The registration fee currently fixed for registering documents relating to property transactions is approximately 1% of the market value or agreement value, whichever is higher, subject to Maximum of Rs.30,000. The reason that there is a cap of Rs. 30,000 on the registration amount is because sometimes, the ready reckoner rates can be very high depending upon the location, size, floor, lift availability, age of the building, among other factors.
You will need to register the property within four months of the date of execution of the sale deed. In case of a delay, you can request the district registrar to grant you an extension of another four months for registration. However, there is a certain amount of penalty charged.
Tax benefit
Under Section 80C of the I-T Act, an individual/HUF assessee is eligible to a deduction of stamp duty, registration fee and other expenses for the purpose of acquiring a house. This deduction is from gross total income. The maximum limit of deduction under Section 80C every financial year is Rs 1 lakh.
Process of registering a property
Registering the documents related to the transfer, sale or lease of a property is mandatory by law under Section 17 of the Indian Registration Act, 1908. Particularly for the state of Maharashtra, the registration of an agreement to buy or sell an apartment is compulsory under Section 4 of the Maharashtra Ownership Flats Act, 1963. A person in whose favour the property is registered becomes its lawful owner.
If, however, the required documents are not duly registered, the law neither recognizes the unregistered owners nor provides them any right over the property. To give you a detailed idea about the process, we have categorized the steps involved in the registration of a property and the documents required to ensure that your property gets successfully and timely registered.
I. Check for encumbrances at the office of Sub-Registrar of Assurances: This can be done by taking a look at the title deed or ownership status of the property such as mortgages or liens. You should verify that the title deed is registered in the name of the person who is selling the property and all the documents are in place for the registration of the same. While investigating this, you must check the following aspects:
- The legal ownership document must be in the name of the owner. This document is issued by the Revenue Record Department and bears the seal of the Tehsildar. A Tehsildar is a gazetted officer in charge of obtaining taxation from a tehsil (an administrative division).
- Records for the last 30 years must be checked to make sure that the property has no mortgage or other encumbrances as on the date of purchase.
- Ensure that the property is transferable and heritable and the transferor/seller is authorized to sell it.
- Make sure that all dues related to payment of taxes, electricity bills and water bills have been paid till the date of purchase.
The entire process might take around 5-7 business days and would cost around Rs 10,000.
II. Preparation of the final deed by the buyer’s lawyer: It is the buyer’s lawyer who prepares the final sale deed of the property. The document is embossed on green legal paper leaving the date and place blank and then submitted for stamping. The fee of the lawyer though varies, is usually one percent of the property value and the process takes around a week.
III. Payment of stamp duty: The buyer has to pay the stamp duty at the designated bank or authorized collection centre of the Stock Holding Corporation of India for stamping of the Sale Deed. The charges vary from state to state but are usually around 5 percent of the true market value of the property. This value is calculated basis the rates of property published in the Ready Reckoner issued by the Government of India annually. Once the payment is done, the bank issues a receipt and marks the first page of the printed Sale Deed with “stamp duty received”. This process does not take more than a day.
IV. Execution of the final deed at the local office of Sub-Registrar of Assurances: This will require the presence of the buyer, the seller and two witnesses at the office of the Sub-Registrar of Assurances within whose jurisdiction the property is located. Once the document is registered after the signatures of buyer, seller and witnesses on the stamped deed, a distinct number is assigned to the documentation.
The documentation is then presented to the Reader of the Sub-Registrar of Assurances for scrutiny, who indicates the registration fee required. The fee is usually one percent of the transaction value or Rs 30,000 – whichever is less. The due registration fee is to be deposited with the cashier against a receipt and then the document is presented before the Sub-Registrar in accordance with Section 32 of the Registration Act, 1908. The documentation is returned to the buyer within half an hour. Subsequently, the seller hands over the physical possession (the keys) of the property to the buyer.
The documentation should include the following:
- Duplicate copy of the document required to be registered
- Two passport size photographs, each of the buyer, the seller and the two witnesses
- Photo identity proof in the form of voter’s ID card and passport of the buyer, the seller and the two witnesses
- Certified true copies of Certificate of Incorporation of both seller and buyer, in case of a company and not an individual buyer
- Copy of the latest property register card to indicate that the property does not belong to the Government. This can be obtained from the City Survey Department
- Copy of the municipal tax bill to indicate the year in which the property was built/constructed
- Copy of the PAN Cards of the seller and the buyer (to be annexed along with the Sale Deed)
- Thumb impressions, photographs and signatures of the buyer, the seller and the two witnesses are mandatory
- The entire process though sounds very tiresome, takes only a day
V. Apply for the mutation of the Title Deed: Mutation refers to the change in title ownership from one person to another when a property is sold or transferred. This is essential as it enables the new owner to get the property recorded in his name in the Land Revenue Department. This also enables the government to levy property tax from the right owner.
Application for the mutation is made at the office of City Survey and Land Records Department. The authorized signatory is required to submit the duly signed application form along with the affidavit, indemnity bond and a notarized copy of the registered Sale Deed. After assessing the request for mutation, City Survey and Land Records Department decides the value of tax on the property and finally issues a letter of mutation in favour of the buyer.
The entire process takes around a month. The costs associated with the procedure include Rs 100 as the application fee, Rs 200 for the indemnity bond, Rs 100 for the affidavit and Rs 50 as notary charges.
Once the buyer attains the letter of mutation, s/he becomes the official owner of the property purchased. Since the process is very complex and involves numerous steps, it is recommended that you should take assistance from a property agent or consultant and a qualified lawyer.
06
Other Allied Work
Legal Consultation
Advise on all matters of law: it may involve representing a client in the civil and criminal courts or advising a client on matters such as matrimonial and family law, estates, property transactions
Allied Legal Work
- Prepare all Legal Notices,
- All kind of Affidavits and Notary,
- Apply for Name Change Gazette,
- Online Leave and Licence Agreement & Police Verification,
- Co-Operative Housing Society Ltd. Registration
- Deem Conveyance & Society Conveyance
- Welfare Society Registration,
- Finding Old Registered Documents,
- Property EVN & Stamping,
- Property Valuation Adjudication
- Trade Mark Registration
- Partnership Deed Registration
- Any other Legal Work On Request.
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