FAMILY LAW MATTERS
1) Mutual Consent Divorce
Divorce by Mutual Consent is the simplest and easiest way of dissolving marriage. Procedure for Mutual Consent Divorce is laid down as under for easy understanding:-
- Both Parties ie Husband and Wife have to reach to Mutual understanding and agreement regarding terms and conditions for Divorce.
- On the basis of settlement and agreement, petition for Mutual Consent is drafted. Under Hindu Marriages, such Petition is filed under section 13 B of the Hindu Marriage Act. Under Christian Marriages, section 10 A of the Indian Divorce Act. Under secular or civil marriages, section 28 of the Special Marriage Act.
- Divorce Petition will be drafted which will include terms of settlement agreed between parties.
- Such Mutual Consent Divorce Petition shall be filed in the Court as court procedure.
- Matter will come up for hearing in the Court and generally parties have to be present before the Court and their statement is recorded.
- After recording of statements, First Motion will be passed.
- Court gives six months time to parties to reconsider their decision. This is called cooling period generally.
- Second Motion is set up.
- Aforesaid steps shall be repeated. Statement of parties will be recorded again.
- After such recording of statement, Court will grant pass order and judgement, decree for divorce is granted.
- Six months Waiver in Mutual Consent Divorce:-
Law specifically provided six months gap or waiting period between First Motion and Second Motion. Prior to 2009, compliance of six months waiting was not mandatory. But, in 2009, Supreme Court made it mandatory and took away the power of the Family Court or the District Court to waive of period of six months. But, Supreme Court still has power to waive of the period of six months. Thus, Supreme Court is the only Court which has the power to dissolve the marriage in less than six months.
2) Annulment of marriage A petition for the annulment of marriage is moved on certain grounds specified in various matrimonial laws. 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.
3) Contested Divorce implies party desirous of divorce approach the family Court/Civil Court for the dissolution of marriage. Spouse seeking divorce has to take one of the grounds provided under the law of 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. Broad grounds for Divorce are as under:-
- 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 divorce available only to female.
4) Non-Resident Indians (NRI), Indian settled abroad or on work permit who are involved in matrimonial crisis often faces complex situation of divorce, annulment and child custody and consequent legal proceedings.
They have option of filing divorce case in India. But, the biggest problem they face is direct interaction with his/her prospective Divorce Attorney to understand the complex issues of tarns-border divorce cases and NRI Divorce Laws, etc. We at Divorce Lawyers have expertise in this area of Divorce which involves NRIs, etc. We understand that time is essence and attending Court hearing is expensive as well as time consuming. We offer our specialized services and represent the client before the Court. We know the art of trade to keep the attendance of client in Court to minimum one or two during entire contested divorce case. We have achieved the unique distinction of getting the Divorce by Mutual Consent via power of attorney and video-conferencing which ensure that you even do need to be present in the Court.
We provide complete and regular update to client about the development of the divorce, annulment, child custody cases. We are just a call or e-mail away. Our time structure is also tailor-made to address the issues of NRI Legal Services. We have achieved commendable success in NRI’s Divorce and allied matter by adopting practical and lateral approach in the resolution of dispute.
5) 498A & allied criminal proceedings
Presently, matrimonial cases are not confined within the realm of civil and family laws. Such cases can have criminal character too. Generally, wherever there is a cruelty exercised by the husband or his relative upon the wife in regard to the demand of dowry, a criminal case under section 498A of IPCis registered against the husband and the other relatives who were causing such cruelty or whose name is mentioned in the complaint by the wife. Along with this a case under section 406 of IPC is registered for criminal breach of trust beside other provision of IPC and Dowry Prohibitions Act.
In such cases, at the first instance, husband and his relatives have to apply for the interim protection, anticipatory bail and regular bail, etc. We provide our expertise service in this regard in defending as well as prosecuting the case. We have vast court experience in this regard. We also try to effectively negotiate and settle the matter in between the parties so that the parties can be saved from the traumatic experience of criminal proceedings.
6) Domestic violence Protection of Women from Domestic Violence Act, 2005, popularly called as Domestic Violence Law or DV 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 exparte 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 exparte 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 exparte 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 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.
7) Maintenance This is an integral part of all matrimonial proceedings. Application for maintenance can be moved by either of the spouse who does not have the sufficient means to maintain him/her self. Maintenance can also be classified in to 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 loose and stand on a weaker footing at the time of contesting case. Quantum of such maintenance is dependant on variety of factor but 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. Court always tries to bring both the party at equal platform and footing.
Permanent Maintenance: It is awarded at the time when whole case is finally decided. It could be periodical or monthly depends upon the facts and circumstances of the case.
8) Child Custody In divorce proceedings, the most complex and emotionally drenching issue is that of child custody. Children, young and at times infant have to bear the pain for no fault of theirs. Due to the extreme emotional attachment, both parents want to keep the custody of the children. In Indian set-up, such question is decided by the court of Guardian and Wards. Welfare of the children is the paramount consideration before the Court while deciding the question as to who is entitled to have the custody of children. Custody of children can be divided in to three parts:
1) Permanent Custody: After determining all issues, Court grants permanent custody of children to one of the party.
2) Interim Custody: During the pendancy of the case and otherwise, court can grant interim custody to one of the spouse. It is also possible that Court grants interim custody of children to the other parent at the times of vacations, holidays etc.
3) Visitation Rights: Every parent has inalienable right to meet and see his/her children. Even after winning the case of custody of children by one parent, other parent can not be denied the right to meet and see his/her children. In disposing of such cases, Court awards reasonable visitation right to the other parents and fix up the time and days for the meeting with his/ her children so that the emotional ties are not broken between the child and the other parent.
9) 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.
10) Judicial Separation 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.
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.
11) Divorce petition
We draft a divorce petition. If it is a mutual consent divorce, then the petition will be based on the requirements for divorce, eg. it is impossible for the couple to live together, they have lived apart for the required period of time. If it is a contested divorce then it will be based on the grounds for filing a divorce in India under the personal law governing your marriage. You will be expected to provide your lawyer with every necessary detail and documents that would enable him/her to draft a concise petition and file the case in the court.
12) Mediation and Counseling
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!!!