What is the benefit for a women with a men under live-in relationship?

This is a new trend in Indian laws that maintenance is provided to women who have a live in relationship for a period of time. This happens after the implementation of the Domestic violence Act in India. No Indian laws has defined who is a wife neither the Hindu marriage act or the Christian marriage act and even the special marriage act has not defined who is a wife or husband except the criminal procedure code. Explanation given for section 125 (1) of Cr.P.C. has stated “Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried”.

The very object for the Cr.P.C. to define the wife is for the purpose of maintenance. No person other than a wife was granted maintenance till the enactment of Domestic violation act which provides women as domestic relationship.

The Live-in-relationship is a western concept which is imported to India in its cosmopolitan city at large and outskirts as insignificant. Live-in-relationships are mostly seen in

1.At college levels where both women and men came from other cities  or out states for the purpose of studying. They took houses for rent and lead a live-in relationship till their studies. And even perform the obligations as husband and wife. It is quite common in Chennai and other major Indian cities.

2.At work levels where both women and men came from other cities  or out states for the purpose of job. They took houses for rent and lead a live-in relationship. They continue their relationship till their marriage or even marry the same person but it happens rarely. This trend happens between young generation to escape from the clutches of the marriage.

3. Widows who after the death of her husband are happen to live-in-relationship with other women’s husband for their social and financial security without being married with that person. Since the fist wife is the barricade to marry the concubine legally. Law give only the status of concubine to them.

4. Divorcee women who had grown up children whom doesn’t want to commit a martial life and bondage are having a live-in relationship.

In some situations the men’s nature to forbidden the women who are in a live-in relationship. The women’s were left abandoned in the society without any financial assistance or source of living. The domestic violence act came rescue to such victimized women and provide maintenance for her life.

 A man and woman not married, but having live-in relationship is enough for the Woman is entitled to maintenance under Protection of Women from Domestic Violence Act. But merely living a live-in relationship is not entitled for maintenance. The women has to show that though there was no marriage but relationship was in the nature of marriage. Having sexual relationship with a women frequently is not a live-in relationship. It is a nature of living as a husband and wife without undergoing a marriage.

"Relationship in the nature of marriage" must fulfill the following ingredients :-

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

(e) The parties must have lived together in a 'shared household' as defined in Section 2(s) of the Act - Merely spending weekends together or a one night stand would not make it a 'domestic relationship'.

(f) If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, be a relationship in the nature of marriage.

A legally wedded wife or divorced wife can claim maintenance from husband under Section 125 of Criminal Procedure Code. A women who was in live-in relationship with man but not legally wedded is not entitled to claim maintenance under Section 125 of Criminal Procedure Code. However if such a women proves that she was in domestic relationship with the man in the nature marriage would be entitled to claim maintenance under Section 20(3) of Protection of Domestic Violence At, 2005. The supreme court of India has also confirm this proposition in Velusamy Vs Patchaiammal case. This is a progressive judgment and a great boon to the suppressed women.  

Authour K.P.Satish Kumar M.L. Advocate Madras High Court 
Leading Matrimonial Dispute lawyer
By Team Daniel & Daniel
Helpline:- 9962999008

Child Custody to Grand Parents- Helpline - 9884883318

Law permits on certain conditions the child custody to the grand parents. Being father and the mother is a natural guardian, the custody of the child remains with them. Grand parents were granted the child custody in certain circumstances and conditions.

Before granting child custody two things should be considered by the court. They are (1) Controlling consideration governing the Custody of children is the welfare of children and not the right of their Parents  as per Nil Ratan Kundu case in 2008 (9) SCC 413 (2) Paramount consideration is the welfare of the minor and not the legal right of a particular party as decided in 1993(1) RRR 413 (SC) (3) If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor. (4) In the Nil Ratan Kundu case child was called by Supreme Court in chamber and custody given to maternal grand parents in preference to father.

On determining the child custody court may not always give custody to parents alone but in extra ordinary circumstances it may also grant custody to the grand parents. Before determining the custodial rights courts should go the following acid test.

(1) Object of Guardian and Wards Act, 1890 is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education.

(2) Due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship. 1973(1) SCC 840 relied.

(3) Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him.

(4) First and the paramount consideration is the welfare of the child and not the right of the parent. JT 2008(6) SC 634 relied.

(5)Custody of child cannot be given merely on ground of financial soundness of the party - Paramount consideration should be welfare of minor.

(6) The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being.

(7) Father is natural guardian of minor, but paramount consideration is the welfare of the minor and not the legal right of a particular party.

(8) Keeping in mind the welfare of the child as the sole consideration, it would be proper to find out wishes of the child as to with whom he or she wants to live.

(9) Custody  cases cannot be decided on documents, oral evidence or precedents without reference to 'human touch' - The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience. AIR 2003 Madras 315 relied.

(10) A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents - In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child.

(11) If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.

(12) Controlling consideration governing the custody of children is the welfare of children and not the right of their parents.

(13) One of the matters which is required to be considered by a Court of law is the 'character' of the proposed guardian.

On under going the above acid test a child custody can be given to the grand parents instead of the father.

Author K.P.Satish Kumar M.L. Advocate Madras High Court

Leading Child Custody Advocate

By Team Daniel & Daniel

Head Office :- New No.99, 3^rd Floor, Armenian Street, Chennai-600001, Tamilnadu, India.

Helpline:- 9962999008.

When an Indian wife or husband can claim divorce under mental cruelty- Divorce helpline - 9962999008

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-to-day 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.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."

In the above circumstances an Indian husband or wife can apply and obtain divorce under mental cruelty.

Author K.P.Satish Kumar M.L. Advocate Madras High Court

By Team Daniel & Daniel

Helpline:- 9962999008

Single Act cannot create cruelty ground for divorce - Divorce Helpline - 9962999008

The couples got married on 10.11.2010 according to Hindu religious rites and customs. At the time of marriage, the wife was employed as an Assistant in the State Bank of India, Madras and the husband was also employed in IT sector, The husband has got deformity with his legs due to polio attack. He cannot walk fast and freely. Knowing fully well about his health the wife married him. After marriage, the wife started to ill-treat the husband and abuse the husband by saying all sorts of derogatory remarks about his deformity and the wife also called the husband as a limp. On 1.1.2012, when the husband went to the office of the wife to pick up her while returning home, she objected to that saying that she did not like him and she did not like to go with a limp person in public and the wife ill-treated the husband with all contempt and disrespect. On 5.5.2012, she openly declared that she did not want to live with the husband any more and she is prepared to get divorce from the husband and wanted to marry her family friend by name Narayanan who had been employed with her for more than seven years. This art of the wife caused mental cruelty to the husband and he is put to great mental agony. On account of this cruelty, the husband lost peace of mind and also his health was affected. On 8.1.1992 when the husband went to the wife's parent's house along with the wife, the wife did not allow him to stay there and on one occasion, the husband was waiting in the Annanagar bus stand for the PTC bus and to his shock and surprise, the husband saw the wife going to hospital along with Narayanan in his cycle and immediately, the husband returned to the wife's house and questioned about the act of the wife with her parents and they also replied that the wife is not interested in living with him and she is interested in leading life with Narayanan. On 7.5.2012, when the wife went to ESI Hospital along with Narayanan in a bicycle the husband met the wife and questioned about her act and she told that she has got relationship with Narayanan for seven years and she created a big scene in the public road. The child is also not properly maintained by the wife and it is in the custody of the wife. So, the husband sought for divorce and custody of the minor child.

In this case cruelty has to be necessarily proved by the husband by establishing cruelty on the part of the wife adversely affecting the petitioner. Except the one incident that the respondent went in the cycle along with Narayanan, there is no other activities available in this case to substantiate the allegation of the husband that the wife was having illicit intimacy with the said Narayanan. The fact that the said Narayanan is a family friend of the wife’s family and who was also helping the wife’s  father in many ways and especially during the marriage time of the wife goes to establish that Narayanan took the respondent to hospital as she was not well. From that solitary incident alone, it cannot be concluded that the respondent was having illicit intimacy with Narayanan That solitary ground alone will not constitute cruelty on the part of the respondent and that cannot be a firm ground for passing a decree for divorce.  The court in this matter has considered view that the isolated incident cannot form a ground for passing a decree for divorce and the decree for divorce is not liable to be sustained .

An isolated or single act is not amounts to cruelty. Law emphasis continues activity of cruelty

Authour K.P.Satish Kumar M.L. Advocate High Court Chennai

Leading Divorce Lawyer

Team Daniel & Daniel

Helpline:- 9962999008

Can Indian courts can decide the Child custody of a Foreign National child

The Supreme court of India has decided in Arathi Bandi case that Indian court should not interfere or set-aside the foreign court decree on the on the ground that USA law was inconsistent with Indian Law. In a peculiar case where husband and wife acquired USA citizenship and married in USA according to Hindu rites and customs. And they also obtained divorce according to US laws in US Courts. Husband has obtained child custody in US courts. On arriving India the Indian police took the child from the father and handed over to the mother. Supreme court strictly ask the mother to return the child and to obey the US court order.

Indian courts now settled the proposition of law in child custody as (i) A parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing.

(ii) Contention that the American court, which passed the order/decree has no jurisdiction and being inconsistent in Indian Laws can not be executed in India - Contention not tenable.

(iii) Husband to make necessary travel arrangements for stay of wife and child according to her status prior to dissolution marriage.

In the custody of child Welfare of child is to be the paramount consideration - Even if at an earlier stage by way of summary proceedings under the Act custody was given to one of the spouses by the court but at the time of subsequent proceedings for permanent custody of the child, the child was in the custody of the other spouse against the orders of the summary court, the family court will proceed as if the child was in legal and proper custody and whether in taking away the child from such custody will be in favour of happiness and welfare of the child - Removal of the child from its native land to another country where his native language is not spoken, child being divorced from the social customs and contacts to which he has been accustomed, interruption in his education are some acts which could psychologically disturb the child.

Author K.P.Satish Kumar M.L. Advocate Madras High Court

Team Daniel & Daniel

Helpline: 9962999008

The Procedure for Divorce to husband when wife makes allegations against the husband who was living with another women

When the husband is living extra- martial affair with the staff, for adultery the wife have to prove the adulteress relationship with another women. But for cruelty the strained relationship caused by the husband in leading a affair with the staff is enough.

In extra – ordinary cases the wives suspect the husband having relationship with their own sister or mother or with the relative of the husband are covered under cruelty done by the wife. These are the psychic attitude  of the wives. If a wife file divorce on this grounds it some times put a U-turn and may help husband to get divorce on cruelty grounds or for the dismissal of the divorce petition, when the wife fails to prove with strong evidence before the court.

When the wife engaged detective agents to spy and monitor the husband day-to-day activities, which caused mental agony and distress to the husband and the husband privacy was unnecessarily disturbed due to the wife cheap attitude. The court consider this as the mental cruelty caused by the wife.

The wife allegations of husbands adulterous or affair life will fall under Adultery coupled with Mental cruelty. Cruelty is not defined under the marriage laws in India. But the Court has certain guidelines to determine the mental cruelty for the suspicious life of the husband character by the wife.

The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.

The concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the wife that the husband is unchaste are all factors which lead to mental or legal cruelty.

The husband can file his case for divorce when the wife alleges that husband is leading a immoral life or having affair or suspecting the character of the husband or alleging illicit contacts with the staff’s in the working place or spreading news that among friends and neighbours that the husband have illicit relationships. The divorce petition can be filed at the place where marriage took place or where the husband and wife lastly resided together or at the place of wife.

Author K.P.Satish Kumar., Advocate Madras High Court

Top divorce Lawyer in Chennai.

By Team Daniel & Daniel

Attorneys & Solicitors

Helpline:- 9962999008.
 Email:- advocatechennai@gmail.com

Mental cruelty for Divorce : Golden Rules framed by the Supreme Court of India.

Authour : K.P.Satish Kumar M.L. Advocate, Madras High Court

Leading Divorce Advocate

Mental Cruelty is not defined in the Hindu Marriage Act. The supreme Court of India Held :-

(1) There cannot be any comprehensive definition of the concept of 'mental Cruelty  ' within which all kinds of cases of mental Cruelty  can be covered. No Court should even attempt to give a comprehensive definition of mental Cruelty .

(2) What is Cruelty  in one case may not amount to Cruelty  in other case. The concept of Cruelty  differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

(3) Concept of mental Cruelty  cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. What may be mental Cruelty  now may not remain a mental Cruelty  after a passage of time or vice versa.

What is mental Cruelty  and what is not.

 Illustrations summed up by Supreme Court :-

WHAT IS Cruelty 

(1) Undergoing sterillisation without knowledge or consent of spouse.

(2) Wife having abortion without medical reason or without consent of spouse.

(3) Not having intercourse without physical incapacity or valid reason.

(4) Unilateral decision not to have child.

(5) Sustained reprehensive conduct, studied neglect.

(6) Actions aimed to derive sadistic pleasure.

(7) Abuse and humiliation.

(8) Sustained unjustified conduct affecting physical and mental health of spouse.

(9) Frequent rudeness, indifference and neglect.

What is not a Mental cruelty :

 (1) Wear and tear of marriage.

(2) Jealousy, selfishness and possessiveness causing unhappiness or stress.

(3) Mere coldness or lack of affection.

(4) View married life as a whole; isolated instances not Cruelty .

CONCLUSION: There cannot be any comprehensive definition of the concept of 'mental Cruelty  ' within which all kinds of case of mental Cruelty  can be covered. Supreme Court of India has asked the Indian courts to  considered to view framed by the Apex court and it  has not  even attempt to give a comprehensive definition of mental cruelty.

Team Daniel & Daniel

Attorneys & Solicitors

Helpline:- 9884883318

What are the factors for Mental cruelty which is a immediate cause for Divorce.

Authour : Advocate K.P.Satish Kumar M.L. Madras High Court.

Leading Divorce Lawyer in Chennai.

After the solemnization of the marriage when any of the spouse either the husband or the wife is treated with cruelty, they are eligible for divorce. Section 13 (i) (a) of the Hindu marriage has not defined the term cruelty. But the courts has interpreted that cruelty falls under Physical and mental cruelty. And the cruelty may be intentional or unintentional.   

If it is physical, the court will have no problem to determine it . It is a question of fact and degree . If it is mental, the problem presents difficulty.

The Supreme court at various circumstances has summed up the situations which are fall under mental cruelty.

The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour . It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.

The conception of legal cruelty undergoes changes according to the changes and advancement of social concept and standards of living. To establish legal cruelty, it is not necessary that physical violence should be used.

A set of facts stigmatized as cruelty in one case may not be so in another case.  The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions.

Each case may be different. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of.

Mental Cruelty in Section 13(1)(ia) of Hindu Marriage Act can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other.

What is cruelty in one case may not amount to cruelty in the other case :- How to fix Mental cruelty.

1.The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious belief, human values and their value system.

2.Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case.

3.Question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status and environment in which they live.

Guidelines for Mental cruelty :

1.Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.  It may be words, gestures or by mere silence, violent or non-violent

2. Cruelty should be wilful unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such  danger.

3. Proof beyond doubt, as in criminal trials is not required to prove cruelty.

4.In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence - For proof of mental cruelty Court has to find out nature of cruel treatment, impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.

5.There may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal - Then the impact or injurious effect on the other spouse need not be enquired into or considered.

6.Whether the conduct of a spouse amounted to cruelty has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions.

7.Mere trivial irritations, quarrels between spouses, which happen in day- to-day married life, may also not amount to cruelty.
8.The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court.

Circumstances to Mental cruelty :-

1.   Wife publishing a notice in newspaper that her husband was womaniser, drunkard and a man of bad habits.  It was mala fide and the motive was to demolish the reputation of the husband in the society. It created a dent in his reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life.

2.   Husband getting ready to go to factory, the wife sometimes used to crumple the ironed clothes.

3.   The wife who hides the keys of the motorcycle when the husband goes to job.  

4.   The wife closes  the main gate when the husband goes to job.

5.    Wife launched prosecution under Section 498-A against husband and other relatives while ended in acquittal.

6.   Wife made baseless allegation in written statement that her husband had extra marital relations with another woman.

7.   Husband and wife both professional doctors. Wife advised her husband not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Not to work behind the closed doors with certain members of the staff. There were clear manifestations of her suspecting the husband's fidelity, character and reputation. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty.

By Team Daniel & Daniel

Attorneys & Solicitors

Helpline :- 9884883318