Friday, April 15, 2016

Interim Maintenance Calculator to Indian Wife.

The section 24 of the Hindu Marriage Act provides Hindu wife to get interim maintenance when the divorce or other family court proceedings are pending. The act and the Indian courts has fixed certain criteria to calculate and assess the maintenance amount to be paid by the Husband to wife under S.24 of Hindu Marriage Act.


The Hindu marriage Act says that both the income of the wife and husband should be assessed before fixing the interim maintenance. Without determining the husbands income the court cannot fix the maintenance amount to the wife. Section 24 of the Hindu Marriage Act also provides maintenance to the husband from the wife.

On considering the income tax returns to fix the husbands income the court in VD Mehta V. KV Mehta states that the income tax returns do not reflects true position of income of a party for several reason, and cannot be taken as a sole guide for income of the party in maintenance proceedings.

If wife is taking the support of father and brother then also it is not considered in assessing the quantum of maintenance to be awarded by the court

cost of litigation

The cost of litigation shall also include what is spent by the applicant for travelling a distance from place of her residence to the court and if woman travels a long journey and require assistance than husband would required to pay the expenses for both the persons.

Maintenance of the Children

If Children are under the protection of the wife, the court will be justified in taking that circumstances into account in awarding maintenance to the wife. The Supreme court case in Jasbit Kaur sehgal V. District Judge Dehradun & Ors has held that no doubt section 24 of HMA talks about maintenance to wife during the pend ency of proceedings but this section cannot be read isolation and cannot be restricted meaning to hold that it is maintenance to the wife alone.

Husband Refused  to pay maintenance

If the husband refuses to pay the maintenance amount then the execution of the order of maintenance is not only one remedy the wife can obtain, but stay on proceedings if initiated by the husband can also be obtained from the court.


Quantum of Maintenance

On fixing the Quantum of maintenance it should be determined from an estimate of monthly income allowing for uncertainties, total number of dependents including wife and then fixing share of respondent. The wife cannot claim the maintenance amount beyond reasonable amount.

Article by Chennai Leading Lawyer Mr.K.P.Satish Kumar M.L.

Talk to the Leading Divorce Lawyer in Chennai @ 9884883318

Tuesday, March 29, 2016

Guidelines for a valid adoption of a Child

Persons who may be adopted - No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.
one of the conditions inter alia is that the person who may be adopted has not completed the age of 15 years unless there is a custom and usage applicable to the parties which permit persons who completed the age of 15 years being taken in adoption. 
Other conditions for a valid adoption - In every adoption, the following conditions must be complied with:
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption:
Provided that the performance of datta homam shall not be essential to the validity of adoption.
The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with the intent to transfer the child from the family of its birth. A child who is abandoned or whose parentage is not known may also be taken in adoption provided the given and taken ceremony is done from the place of family where it has been brought up to the family of its adoption.
Article by Advocate Mr.K.P.Satish Kumar
For all your Adoption and Child Custody issues contact
Daniel & Daniel Helpline @ 9962999008


Friday, March 25, 2016

Metal Torture Practiced by Indian Wives and Husbands

No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-today life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
These are the most common mental cruelty practiced by Indian couples. 
Article by Advocate Mrs.Bobby Portia Alex
Daniel and Daniel : Helpline No.9884883318

Hindu wife can conduct her divorce case in the place of her residence

Wife is residing in Delhi whereas the husband resides in Bombay. The husband instituted HMA Petition for restitution of conjugal rights in the Family Court at Bandra, Mumbai. The wife and her minor son of about 5 years are residing along with her parents who cannot afford the expenses of travel from Delhi to Mumbai for prosecuting the said case. She and the minor child cannot travel alone, she being a young lady of about 28 years. In these circumstances, Varsha Paresh Shah   Versus
Paresh H. Shah   the supreme court transferred the
case the Family, Court, Bandra, Mumbai to the Court of the District Judge, Delhi.

The Indian courts only see the convent of the Hindu wife whether she can attend and conduct a case in her circumstances. Travelling with child, Place of stay, Supportive nature for the wife in the strange place are taken into consideration by Indian courts. 
By
Team Daniel & Daniel
For 24 Hrs Helpline :- 9884883318.

Monday, February 22, 2016

Guide for Divorce by Mutual Consent in India

At one time, India used to have one of the lowest divorce rates in the world. Being a society largely based on a traditional value system, couples were both legally and socially dissuaded from seeking a divorce. However, socio-economic changes complemented by legal reforms in the last half a century, have enabled partners, especially women, to opt out of unequal and abusive marriages.
The wave of globalization in the nineties ushered in further changes in the Indian social institutions, especially in urban areas. Couples living and working in cities and metros, were exposed to more economic and relationship options, which prompted them to break out of unsatisfactory or unequal marriages. However, the divorce procedure in India continues to be one of the most protracted in the world, especially in cases where either party contests the divorce. Following, is a brief guide to the procedure of filing a divorce, as well as associated matters like child custody, alimony demands and divorcing a non-resident Indian.
Divorce by Mutual Consent
Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.
Procedure for Filing for Divorce
The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconciliable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.
However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an enquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties.

Daniel & Daniel
Helpline :- 9840787702
Chennai Divorce Law Firm

Wednesday, January 6, 2016

Divorce Procedure in Chennai Helpline- 9840787702

There are different laws of divorce for different religion. Every religion is governed by their own personal laws in India.
A cursory reading of the entire gamut of Indian Laws regarding Divorce makes it clear broadly that the Divorce can be obtained by two ways:
  • Divorce by Mutual Consent
  • Contested Divorce
  • Divorce by ex-parte
1. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses.
Duration of Divorce in Mutual Consent varies from one month to six months or more from States to States and as per the High Court directions.
2. Contested Divorce
As the name suggests, you will have to contest it. Indian laws in general recognizes cruelty (Physical & Mental), Desertion (Period varies from 2 to 3 years), Unsoundness of mind( of Incurable form), Impotency, renouncing the world, etc. Aggrieved party has to take one of the above grounds of divorce and will have to file the case in the Court of appropriate jurisdiction. Party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up accordingly.
3. Ex-Parte Divorce
When one of the party is not appearing in the court then the court will grant divorce without hearing the other party.
ANNULMENT OF MARRIAGE:
Marriage in India can also be dissolved by means of Annulment. Procedure for annulment is same as that of Divorce except that the grounds for annulment are different than that of divorce. Grounds for annulment are fraud, pregnancy of wife by person other than the husband, impotency prior to the marriage and subsist even at the time of filing the case.
Once annulment is granted by the Indian Court, status of the parties remains as it was prior to the marriage.
VOID MARRIAGE:
There are certain form of marriages which are null and void despite the performance /solemnization of the same. Marriage is void under following circumstances:-
a) neither party has a spouse living at the time of the marriage

b) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
 

c) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Time duration for obtaining divorce varies from case to case & place to place. Generally speaking, contested divorce proceedings take approximately 18 to 24 months. Mutual Consent Divorce takes 6 months and more.
Generally speaking procedure for obtaining Divorce in all forms of law (based on religion) is same with only bit of variation.
The secular mind-set of the Indian judicial system has initiated proclamation of various personal laws based on different religious faiths. Hindus, Christians and Muslims are governed under separate marriage acts and grounds for divorce in India.
Let us have a look at the various grounds for divorce in India.
Grounds for Hindus for Divorce
Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act and such are included under cruelty.
Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.
Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.
No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.
The following are the grounds for divorce in India on which a petition can be filed only by the wife.
  • If the husband has indulged in rape, bestiality and sodomy.
  • If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
  • A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
  • If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.
Grounds for Muslim women for Divorce
  • The husband’s whereabouts are unknown for a period of four years.
  • The husband has failed to provide maintenance to the wife for at least two years.
  • The husband has been under imprisonment for seven or more years.
  • The husband is unable to meet the marital obligations.
  • If the girl is married before fifteen and decides to end the relationship before she turns eighteen.
  • The husband indulges in acts of cruelty.
Let us check out the following grounds of divorce mentioned under the Indian Divorce Act, 1869.
  • Adultery
  • Conversion to another religion
  • One of the couples suffering from an unsound mind, leprosy or communicable venereal disease for at least two years before the filing of the divorce.
  • Not been seen or heard alive for the period of seven or more years.
  • Failure in observing the restitution of conjugal rights for at least two years.
  • Inflicting cruelty and giving rise to mental anxiety that can be injurious to health and life.
  • Wife can file a divorce based on the grounds of rape, sodomy and bestiality.
Divorce also seek on the below grounds:-
  • Continuous absence of seven years.
  • Non-consummation of marriage within one year.
  • Unsound mind provided the other spouse was unaware of the fact at the time of marriage and the divorce must be filed within three years of marriage.
  • Pregnancy by some other man provided the husband was unaware of the incident during the time of marriage and that he must not have undergone sexual intercourse after he came to know about the situation. The divorce must be filed within two years of marriage.
  • Adultery, bigamy, fornication, rape, or any other type of perverse sexual act.
  • Act of cruelty
  • Suffering from venereal disease or forcing the wife into prostitution.
  • Sentenced to prison for seven years or more
  • Desertion for two or more years
  • Non-resumption of cohabitation after passing an order of maintenance or a decree of judicial separation.
Procedure
The Hindu Marriage Act lays down the following procedure for Divorce where there is an option for the Hindu married couple to approach the courts of law for separation procedure.
  • The pre condition for divorce for Hindus is that the couple should be living separately for at least one year.
  • The first step in applying for a divorce is to hire a competent lawyer. The competency of the lawyer makes or breaks the case. The lawyer should be understanding and experienced in handling similar cases. He should be able to devote time and energy to the case.
  • There are two types of approaches to file an application for divorce. One is “by mutual consent” and the other is “by contest”.
  • The divorce application “by mutual consent” is easier as it takes lesser time as both husband and wife agrees for the grounds on which separation is sought. If the application is made “by content” it leaves room for the counter party to contest the application and drag the case for years together without a valid reason.
  • The papers to be submitted includes the Income Tax returns for three years, details of present income, the purpose for applying the divorce, birth and family details and the details of the assets possessed
  • A Vakalatnama has to be issued in favor of the lawyer to present the case in Chennai family court the appearance is by party in person.
  • The applicant(s) should be open in discussions with the lawyer as to the marriage date, situations that compelled the divorce and the like. The more detailed the information is, the more easy it will be for the lawyer to file and fight the case in the applicant’s favor
  • The procedure for divorce is time consuming in India and may last for at least a year or more in certain cases. Therefore, during this period, it will be very tough for the estranged couple to handle the emotional part.
  • The grounds for Hindu divorce can be anything from adultery, desertion, mental disorder, renunciation, life threatening disease, no-resumption of co-habitation.
  • Also the children, if any, will be mentally affected if a divorce happens. As tender brains, the separation will leave untold trauma in their minds against family values and love relations. Their future appears blank as the separation of their parents will leave them indecisive with whom to choose as their caretakers. There may be cases when the law declares one parent to take care of the child whereas the child himself prefers to live with the other.
  • Once the application is made, the case comes up for hearing after six month during which period, the couple is asked to reconsider. If the couple does not appear in the court after this “cooling period” the application stands void automatically. Also, the couple can withdraw the application during these six months.
  • During the divorce process, the couple should come to a conclusion related to custody of child, return of marriage gifts, post divorce maintenance and litigation expenses.
  • The alimony is a relatively new concept in India, whereby the separating partner agrees to support the other financially. In mutual consent cases of divorce, the alimony amount is decided mutually, but in contested cases, the courts of law steps in to decide the alimony amounts, when the parties fail to come out with an alimony amount.
The above article is only an information regarding Divorce Procedure in Chennai.

For More information you can call to Daniel & Daniel our Helpline @ 9840787702



Friday, August 14, 2015

Irretrievable breakdown of marriage, the new ground of divorce is a blessing or a curse to India.

Section 13-B of the Hindu Marriage Act and Section 28 of the Special Marriage Act also provide for divorce by mutual consent as a ground for presenting a petition for divorce. Such a petition, if not withdrawn before six months after its presentation or not later than 18 months, then the court may, on being satisfied, grant decree of divorce by mutual consent.
In cases of mutual consent, it has often been found that one of the parties suddenly abstains himself or herself from court and keeps the divorce proceedings inconclusive, causing considerable hardship to the party. This will help such parties from the long drawn harassment in courts.
The new proposal to bring divorce on the basis of irretrievable breakdown of the marriage is on the table of parliament. Advocate Mrs.Bobby Portia Alex says “ that in the male dominated society, divorce under the proposed law will not only demoralize the Indian society but it will make divorce easy when the women dosent want.
The other section of people welcomes it that it make divorce easier and quicker  in India. Let us see the impact of the new proposed law whether it is a curse or blessing to India.


 To Contact Team Daniel & Daniel
Call @ 9884883318