New Delhi, June 3, 2010 The Hindu

Can divorce by mutual consent be granted before statutory six-month period?

J. Venkatesan

Issue referred to three-judge Bench of Supreme Court in view of conflicting judgments

A three-judge Bench of the Supreme Court will decide whether a decree of divorce by mutual consent can be granted without waiting for the statutory period of six months as contemplated under Section 13-B (2) of the Hindu Marriage Act.

Justices D.K. Jain and C.K. Prasad referred this issue to a three-judge Bench for determination, as in several cases the court, in exercise of its extraordinary powers under Article 142 of the Constitution (to do substantial justice), had been passing a decree of divorce by mutual consent without waiting for the six-month period. On this basis, family courts and High Courts had also been granting divorce without waiting for the period.

The need for referring the issue to a three-judge Bench arose from conflicting judgments given by two different Benches. In the first instance, taking note of a number of cases where a decree of divorce by mutual consent had been granted by various courts, it was held that only the Supreme Court in exercise of its powers under Article 142 could pass orders before the expiry of the six-month period.

However, in another judgment it was held that no court had the competence either to issue a direction contrary to law or direct an authority to act in contravention of the statutory provisions. Even while exercising powers under Article 142, the Supreme Court could not ignore the statutory provisions or exercise power merely on sympathetic grounds.

The Bench of Justices Jain and Prasad said it could be gathered that both decisions did not altogether rule out the Supreme Court exercising its powers under Article 142, yet "it would be appropriate to refer the matter to a Bench of three judges in order to have a clear ruling on the issue for future guidance."

Accordingly, the Bench referred the issue - "whether the period of six months prescribed under Section 13-B (2) could be waived or reduced by this court in exercise of its jurisdiction under Article 142."

In the instant case, Neeti Malviya filed a petition for transfer of the divorce case filed by her husband from a court in Karnataka to a court in Madhya Pradesh. During the pendency of the matter, it was reported that the parties had arrived at a settlement to go for divorce by mutual consent and that the husband should deposit Rs. 60 lakh in her favour. However, during a hearing it was brought to the notice of the court that there were two different judgments and the question was raised whether the six-month period could be waived in this case. It was in this context the matter has been referred to the Chief Justice of India for being posted before a three-judge Bench.

The Bench, while directing that the matter be listed for further hearing in November, said that in the meantime the parties should file a joint petition under Section 13-B for grant of divorce by mutual consent in terms of the settlement.


Denying sex a ground for divorce: Karnataka HC


Denying sex to husband without any specific reason is cruelty and ground for divorce, the Karnataka high court has ruled.

Rejecting a woman's appeal seeking to set aside a decree of divorce granted by the family court, the court observed recently: "The husband can't be made to suffer for no fault of his and be deprived of his natural urge to enjoy sexual happiness if the wife is unwilling to share the bed and discharge her duties."

The wife had moved the high court, challenging the family court's order of 2009. The Mysore-based couple got married in 2006, but the wife never shared the bed with the husband. Though counselled by doctors at Nimhans and a private hospital in Mysore, she did not show any improvement.

A division bench comprising Justices K L Manjunath and K Govindarajulu said: "When the marriage is not consummated for more than six years, no court can direct the husband to join his wife and live without conjugal happiness for the rest of his life. Even if the wife had any medical problem, she was required to provide evidence to the court and prove she was ready to discharge her duties as a wife. But she has made no such efforts. Therefore, for no fault of the husband, he can't be made to suffer depriving of his natural urge to enjoy the sexual happiness." The court upheld the divorce granted by a family court in Mysore.

The 20-page judgment noted that the wife was not illiterate and was, in fact, a postgraduate. She could have produced the medical records if she had any problems, it said.

The husband moved the family court in 2009, three years after the marriage, seeking divorce under Section 19 of the Hindu Marriage Act, 1955, on the grounds of cruelty as his wife refused to share bed with him. The divorce was granted in 2010.

He told the court that he tried his best to improve the relationship by taking his wife to a psychiatrist and a gynaecologist in a private hospital in Mysore as well as in Nimhans. The wife, in her defence, argued that she had never declined to share bed with her husband and their marriage had been consummated. During cross-examination in the family court, she had agreed that the marriage was not consummated.

"The husband can't be made to suffer for no fault of his and be deprived of his natural urge to enjoy sexual happiness if the wife is unwilling to share the bed and discharge her duties."


Divorce can't be purchased: SC

PTI Sep 23, 2010, 02.47am IST

NEW DELHI: The Supreme Court has ruled that divorce cannot be purchased by a spouse by paying a lumpsum amount to the other party and said courts cannot pass any decree in violation of the Hindu Marriages Act.

"No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties de hors the grounds enumerated under section 13 of the Act, unless of course the consenting parties proceed under section 13B (mutual consent) of the Act.

"A Hindu marriage can be dissolved only on any of the grounds plainly and clearly enumerated under section 13 of the Hindu Marriage Act. The law does not permit the purchase of a decree of divorce for consideration, with or without the consent of the other side," a bench of Justices Aftab Alam and R M Lodha said in a judgement.

The apex court passed the judgement while upholding the appeal filed by Sanjeeta Das challenging a Calcutta High Court judgement which had granted divorce to her husband Tapan Kumar Mohanty even though she had not given her consent.


Mental disorder can be ground for divorce: SC

New Delhi: A husband or a wife is entitled to divorce if either spouse is found to be mentally unsound or indulges in cruelty, the Supreme Court has held.

A bench of justices P Sathasivam and BS Chauhan in a judgement said under Section 13 of the Hindu Marriages Act, either of the spouse can seek divorce, provided sufficient evidence is placed to justify the claim.

The apex court upheld the appeal of Pankaj Mahajan, challenging the Punjab and Haryana High Court's refusal to grant him divorce despite producing medical and other evidence to prove that his wife Dimple suffered from schizophrenia and subjected him to humiliation, assaults and threatened suicide.

The high court had refused to grant him divorce and quashed the decree of divorce granted to him by a matrimonial court in Ropar district.

"Without proper discussion and adequate reasons, the high court rejected the evidence of the appellant-husband as PW-4. A perusal of his evidence clearly shows the agony and treatment meted out immediately after the marriage due to mental disorder, unsound mind of the respondent-wife.

"From the materials placed on record, we are satisfied that the appellant-husband has brought cogent materials on record to show that the respondent-wife is suffering from mental disorder, i.e., schizophrenia. From the side of the appellant husband, various doctors and other witnesses were examined to prove that the respondent-wife was suffering from mental disorder," Justice Sathasivam, writing the judgement, said.


The couple got married at Amritsar on October 2, 2000. But within one-and-a-half months, Pankaj found Dimple behaving abnormally, as she used to suddenly get aggressive, hostile and suspicious in nature.


In a fit of anger, she used to threaten suicide and implicate Pankaj and his family members in a criminal case, unless she was provided a separate residence.


Even after the couple shifted to a separate home, herstrange behaviour continued and she attempted suicide by jumping from the terrace but luckily was saved by Pankaj.


She insulted and humiliated him in front of his colleagues and relatives several times and on one occasion she pushed him from the staircase that caused a fracture in his right forearm.


Later it came to light Dimple had undergone treatment for mental illness and schizophrenia prior to the marriage.


Upholding the husband's plea, the apex court said, "The acts of the respondent wife are of such quality or magnitude and consequence as to cause pain, agony and suffering to the husband which amounted to cruelty in matrimonial law."


The court further noted that the husband had conclusively established that the wife constantly threatened him with suicide, pushed him from the staircase resulting into fracture of his right forearm, slapped and assaulted him, misbehaving with the colleagues and relatives and failed to attend to household chores, all of which amounted to cruelty.


"We are satisfied that the appellant-husband had placed ample evidence on record that the respondent-wife is suffering from 'mental disorder' and due to her acts and conduct, she caused grave mental cruelty to him and it is not possible for the parties to live with each other, therefore, a decree of divorce deserves to be granted in favour of the appellant-husband," the bench said.


Suicide Threats - A ground for Divorce under Hindu Marriage Act

An interesting decision has come along recently by the Supreme Court of India in the case of Pankaj Mahajan v. Dimple @ Kajal Civil Appeal No. 8402 of 2011, case which was concerned with the issue of divorce. Interestingly, after this case, a person will be able to get a divorce decree if other spouse is threatening former of committing suicide. And, the same can be categorised under cruelty. In the instant case, wife-respondent was suffering from schizophrenia which husband-petitioner was not aware of. And, wife was suffering from that particular disease even before marriage, and she, after marriage, on several occasions had threatened her husband that she would commit suicide. Instead, she once tried to end her life but was eventually saved on the timely intervention of her husband. Husband left his parental home in the hope that his wife will abstain from becoming aggressive, but no fruitful result came out. He intimated the same to his mother-in-law and consequently filed a petitioner before the District Court of Amritsar which decreed in favour of husband. But, the order of the district court was reversed by the Punjab and Haryana High Court because of which the matter came before the Supreme Court under civil appeal.

Section 13, of the Hindu Marriage Act, 1955 can be read as - (Only Relevant Portion)

13. Divorce (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i-a) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

Husband came to know about the mental condition of his wife only after one month of the marriage, and same was intimated to her father. Reports presented before the court made in clear that wife had undergone treatment but doctors have not certified her to be entirely mentally fit. Supreme Court refuted the reasoning of the High Court where high court had opined that mere mental illness cannot be considered as a sufficient ground for seeking divorce without appreciating the reports of the doctors. All the doctors who submitted their reports before the court called the diseased suffered by the respondent-wife to be incurable.

Reasoning of the Supreme Court while rejecting the opinion of the High Court can be read as follows -

"It is clear from the above that the respondent-wife was not of sound mind and she did not look after the household work rather she used to give threats to commit suicide. She did not even make food for the appellant-husband and he had to arrange the same from outside. Apart from this, she used to embarrass the appellant-husband before his landlord's family and because of her weird behaviour and threats to commit suicide, the appellant-husband was forced to leave the rented accommodation. Madan Lal, the landlord, PW-5 has also highlighted several instances when the respondent-wife used to quarrel with her husband and he had to face humiliation in front of others because of her behaviour. Inasmuch as PW-5 was living in the same house on the ground floor and the appellant-husband and the respondent-wife were living on the first floor, the said witness being the eye-witness to the cruelty meted out by the respondent-wife to the appellant-husband, as he had himself seen the behaviour and the activities of the respondent-wife including humiliation and threats of committing suicide, cannot be thrown out. Under those circumstances, the observation of the High Court that the statement of PW-5 is only hearsay is liable to be rejected."

Supreme Court further stated that -

"It is well settled that giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. In the case on hand, the appellant-husband has placed adequate materials to show that the respondent-wife used to give repeated threats to commit suicide and once even tried to commit suicide by jumping from the terrace. Cruelty postulates a treatment of a spouse with such cruelty as to create reasonable apprehension in his mind that it would be harmful or injurious for him to live with the other party. The acts of the respondent-wife are of such quality or magnitude and consequence as to cause pain, agony and suffering to the appellant-husband which amounted to cruelty in matrimonial law."

Divorce was consequently granted to the husband.


June 15, 2010 The Hindu

Of wedlock and deadlock

A rational and progressive divorce law must strike a balance between two seemingly incongruous objectives. It should support and sustain the stability of the institution of marriage. But it should also enable couples to end their contract with the minimum fuss and acrimony once it is established that the marriage is beyond repair and no constructive purpose would be served in keeping it alive. The irretrievable breakdown of a marriage, a concept first recognised in New Zealand's matrimonial laws in 1920, is now widely accepted around the world as a condition for the grant of divorce. In clearing amendments that make irretrievable breakdown a ground for divorce in the Hindu Marriage Act 1955 and the Special Marriage Act 1954, the Union Cabinet has accepted longstanding recommendations made repeatedly by the Law Commission of India and the higher judiciary. The Delhi High Court struck an extremely sensible and pragmatic note as early as 1967 when referring to married couples in Ram Kali v. Gopal Das: "It would not be practical and realistic...indeed it would be unreasonable and inhumane, to keep up the façade of marriage even though the rift between them is complete and there are no prospects of their ever living together as husband and wife."

As things stand, the provisions relating to divorce in the Hindu Marriage Act and the Special Marriage Act (which provides for a civil marriage by registration, under which a couple may marry whatever be their religion) mainly relate to ‘matrimonial fault' - or such things as adultery, cruelty, and desertion. The provision for divorce by mutual consent, introduced in the Hindu Marriage Act in 1976, also exists. While this requires both parties to cooperate on the terms of their divorce, irretrievable breakdown is a conclusion the court may reach if the facts before it establish that the marriage cannot be saved. It is important to stress that irretrievable breakdown was never envisaged as a painless, hassle-free way of arbitrarily dumping a spouse. As the Law Commission has recommended, aside from ascertaining that the marriage is wrecked beyond hope of salvage, any grant of divorce under this provision must ensure that adequate financial arrangements are made for spouses, whenever required, and children. The process of reforming Hindu matrimonial law has resulted in a situation where it is not substantially different today from that which governs civil marriage. The challenge in this connection is to persuade other communities - Muslims and Christians, in particular - to accept reforms in their marriage and divorce laws that are progressive, gender-equal, and in keeping with contemporary thought and practice.


Divorce to be quicker, wives to get asset share

Express news service : New Delhi, Sat Mar 24 2012, 01:51 hrs

The government on Friday decided to make significant changes in matrimonial laws. The amendments include allowing courts to reduce or waive the waiting period of six months before moving a joint motion in case of divorce by mutual consent and making provisions to ensure that women get a share in property acquired during the marriage.

Sources said these changes would be incorporated in The Marriage Laws (Amendment) Bill, 2010, which was introduced in Parliament last year, and which seeks to amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954.

The changes were made taking into account some of the suggestions made by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice which had examined the Bill. The re-drafted Bill could be introduced afresh during this session.

In a move to make the process of divorce easier, it is learnt the government proposes to insert "irretrievable breakdown of marriage" as a new ground for parting ways. As for the mandatory six-month cooling-off period, the reasoning was that there was no point in prolonging a marriage where parties are unable to live as husband and wife.

Besides, the Bill gives women the right to property acquired during the marriage. According to the amendments cleared by the Cabinet, while adjudicating on divorce petitions, courts can decide on how much property acquired during marriage is shared.

According to the redrafted Bill passed by the Cabinet, adopted children will also have rights on par with biological offspring of a couple in case the parents go in for a divorce.

Sources said the Bill provides for some safeguards to women to ensure that the "irretrievable breakdown of marriage" clause for divorce is not misused. There is a provision giving the women right to oppose divorce pleas filed by husbands on grounds of irretrievable breakdown of marriage.

The Cabinet has gone in for reducing or waiving off the cooling-off period despite the fact that the Standing Committee had suggested that the existing provisions of law for divorce by mutual consent were fair and reasonable and that the cooling-off period should be retained so as to protect and preserve the institution of marriage.


Woman cannot be debarred from maintenance after divorce: HC
Agencies
Posted: Aug 27, 2008 at 2024 hrs IST
 

Allahabad, August 27: In a significant judgement, the Allahabad High Court on Wednesday ruled that a woman was entitled to claim maintenance from her former husband even if she had earlier agreed not to do so by way of a compromise.

Passing the judgement, Justice M K Mithal set aside the order of family court at Kanpur of January 18, 2005 in which the application of Manorama, seeking maintenance from her former spouse, was rejected on the ground that they had reached a compromise in the civil suit by which the wife had accepted a lumpsum amount and agreed not to claim any maintenance in future.

The court also turned down the husband’s plea that Manorama be debarred from claiming maintenance on the ground that she had, at the time of granting of divorce by mutual consent, agreed not to claim maintenance.

“The right to claim maintenance under section 125 of the criminal procedure code is a matter of public policy and not of an individual. In such circumstances, the right to claim maintenance cannot be waived by mutual agreement,” the court observed.

Moreover, it added, “any contract which is opposed to public policy is void and thus inspite of any such agreement, the wife cannot be debarred from claiming maintenance until she remarries and is able to maintain herself."


Couples say no to divorce, yes to maintenance

Published: Wednesday, Aug 19, 2009, 2:11 IST
By
Odeal D'Souza | Place: Bangalore | Agency: DNA

Splitsville is revealing its softer and perhaps pragmatic side. Bangalore’s couples are waking up to pre-divorce, a marital status that hinges on maintenance money. So, filing for divorce is not the most-sought-after option anymore; seeking maintenance is.

Family courts have seen a spurt in the number of maintenance cases compared to divorce cases. While, in 2008, there were 600-odd maintenance cases filed through the year, 2009 has seen 414 maintenance cases filed till August.

Advocate M Raju is handling 10 maintenance cases compared to five last year. Anjana Sunder, also an advocate, is involved in 16 cases this year against 10 last year. Most women opting for maintenance are from middle and lower classes. The stigma attached to a divorce, and the problems of raising children on your own, are the main reasons for the rise in maintenance cases, explains Sunder.

As per the Criminal Procedure Code, a maintenance case can be filed without divorce by a homemaker/ wife who does not have a source of income and does not want a divorce.When wives do not want divorce but monetary security, they can file for maintenance. In divorce petitions, permanent alimony is given and maintenance is avoided. The matter ends there. There is no life-long security in divorce, which is there in maintenance, advocate Arun KS said. In a maintenance case, the husband has to give money to the wife every month. Even if the wife and husband stay under one roof, and there is no physical relationship or proper understanding between them, the wife can still claim maintenance.

Ratna N, a resident of KR Puram and mother of two, filed for a maintenance of Rs10,000 from husband Akilesh, whom she married in 2004. Ratna and Akilesh do not want to live together but do not want a divorce. Divorce is the ultimate step that I don’t want to take, but as I am living separately, I want maintenance till I have a regular source of income, says Ratna.

Advocate AV Amarnathan has seen a 30 per cent rise in the number of maintenance cases. There are many cases where women have walked out of the marriage for silly reasons and are staying separately. They do not want a divorce and, hence, are filing for maintenance, says Amarnathan.

Vimala KS, vice-president of the All-India Democratic Womens Association, has a different take, though: It is often highlighted in maintenance cases that women want money and so file for maintenance, which is not true. Women need their financial independence and, hence, they claim maintenance.


Divorce cases: HC says scrap 6-month cool-off period
Swati Deshpande, TNN Mar 18, 2010, 02.01am IST

MUMBAI: A recent decision of the Bombay high court will now help speed up divorce for couples who wish to end their bitter legal battle through mutual settlement. The HC has held that the six-month cooling-off period for a couple who file a joint petition for divorce cannot be insisted on by the family court if the couple has already been living separately for a year and their contested divorce plea has been pending in court for over six months. "Parties who settle their dispute are not required to be penalised for doing so,'' said Justice Roshan Dalvi.

The case pertained to a couple married under the Hindu Marriage Act in 2005, who had lived together for a year before separating. The husband then filed for divorce a year later. Both traded charges of cruelty and harassment, but soon agreed to bury the hatchet and withdrew their allegations. In December 2009, they filed consent terms for a mutual divorce plea and sought a waiver of the 6-month period—stipulated under law to enable the couple to reconsider their decision. However the family court judge rejected their request.

With more than three years of separation behind them, the couple, who wished to get on with their separate lives, moved the high court to challenge the family court order. Taking a progressive approach, Justice Roshan Dalvi held that after considering the law and reading the various provisions for grant of divorce "harmoniously'', the view taken by the family court judge was "erroneous''.

The HC held that the family court law also empowers the family court to consider alternative modes of reconciliation between couples, including mediation, which could result in couples getting back together or parting ways amicably by mutual consent. If the mediation results in the couple dropping their acrimonious charges and if in the meantime six months have elapsed, then the family court cannot insist on waiting another six months before granting divorce by mutual consent, said Justice Dalvi. "If a petition for divorce filed on various grounds, including allegations of cruelty, has remained pending in court for as long as three years as in this case, the parties require no respite period to reconsider their decision to dissolve a broken marriage in which allegations were first made and later withdrawn on seeing reason,'' she held.

Under the law, a couple can file a mutual consent divorce petition under Section 13B of the Hindu Marriage Act after living separately for a year. The court is required to grant a divorce six months after the petition is presented before it.


'Women can file for divorce anywhere'
TNN Jul 13, 2010, 02.30am IST

CHENNAI: In a crucial ruling that is sure to cheer up women fighting divorce cases with husbands residing in a foreign country, the Madras high court has said that the family court in India had jurisdiction to try matrimonial litigation even if the husband is a citizen of a foreign country and not an ordinary resident of India.

A division bench comprising Justice Elipe Dharma Rao and Justice KK Sasidharan pointed out that the amended Section 19 of the Hindu Marriage Act extended to outside India. "The fact that the husband is residing outside the territory does not prevent the wife from applying before the local designated court to redress her grievances," the bench said.

The judges were passing orders on a case involving film actor R Sukanya and her husband R Sridharan, who is an American citizen. The two got married in April 2002 as per Hindu rites and custom at the Balaji Temple in New Jersey in the US. After nearly a year she returned to India, started to act in films, and also filed a divorce petition in 2004. As her husband did not attend the proceedings, the family court granted her divorce ex parte.

On representation from her husband Sridharan, later the family court reversed its order. He also filed a petition in the high court to restrain the family court from hearing the case on the ground that the court in India had no jurisdiction to take up the matter involving American citizens.

Dismissing his claims, the judges said that when the marriage was solemnised under the Hindu law, the proceedings for divorce also has to be made under the same Act. Referring to the amended Section 19 of the Act, the judges said that with effect from December 23, 2003, the wife is now entitled to file a matrimonial petition before a district court in whose territorial jurisdiction she is residing.

The judges rejected Sridharan's claims of domicile, and said, "when the marriage was solemnised under the Hindu law, the proceedings for divorce has also to be made under the said Act. He cannot take any exception to the proceedings in India under the provisions of the Hindu Marriage Act merely on account of his US citizenship or domicile."

Explaining the rationale behind the amendment, the judges said the original section was causing serious prejudice to women as it was not possible for them to initiate proceedings before the court in whose jurisdiction they are residing.

"Because of the rigid provision, women were compelled to approach the court in whose jurisdiction the marriage was solemnised or the husband resides or the parties to the marriage last resided together. The jurisdiction clause as it stood originally was really unfair to women," the judges said and directed the family court to go ahead with the hearing of the actor's case and conclude it within two months.


Now, women can retain their maiden name
Swati Deshpande, TNN Feb 26, 2012, 02.16AM IST

MUMBAI: Women in Maharashtra have another reason to celebrate as International Women's Day approaches.

It is now perfectly legal for a woman to retain her maiden name after marriage. The Bombay high court recently amended a crucial rule under the Family Courts Act to prevent a woman from being compelled to file any marriage-related proceedings only in her husband's surname, thus offering relief to many seeking a divorce. It will also help a married woman file proceedings in other courts under her maiden name, say legal experts.

The radical rule says that "a wife who has not changed her name after marriage, by publishing in the official gazette, may continue to use her maiden name". The law is clear now: a woman is not obliged to take her husband's name after marriage.

A woman can file proceedings either in her maiden name or another name she may have adopted as long as it is officially registered in the gazette. If she retains her maiden name, a woman cannot be forced by a court to write her name as her first name followed by her husband's first name and his surname while making a marriage-related petition.

Flavia Agnes of the women's rights activist group Majlis, whose efforts led to this change, sees the amendment as a "progressive new addition to the law for women". Majlis' efforts ensured that a woman can continue to use her maiden name and surname if she so desires after marriage for all official purposes. She is not bound to use her husband's name and can initiate proceedings in any court using her maiden name. The 'after divorce' status, meanwhile, does not force a woman to revert to her maiden surname if she had been using her husband's surname all through the marriage. She can continue with the ex-husband's surname, unless her intention is to defraud him, as was held by the Supreme Court.

Unknown to even lawyers, the new law stands published in the state gazette since last November, after the Bombay high court amended a crucial rule under the Family Courts Act in September 2011.

The law has been hailed by women's rights activists and lawyers. "A woman cannot be compelled while seeking divorce to adopt her married surname if she hadn't been using it, just as she cannot be compelled to drop her married name and revert to maiden surname after divorce, if she had been," said a lawyer.

"Prior to the amendment, the Bandra family court staff would not accept divorce or related applications from hundreds of women until they added the first name of their estranged husband as their middle name, and also his surname," said Agnes. The court staff would compel the quarrelling couple to bear only one surname-the husband's-in the court case to be filed.

A year ago, Majlis took up the cause with the Bombay high court because it supervises functioning of all lower courts. The issue, said Majlis, was that in Maharashtra, many communities practised the custom of a new wife changing even her first name after marriage and adopting her husband's full name. But other communities from states across India do not usually follow this custom, though it's common for women to adopt the husband's surname.

Besides, an increasing number of urban women prefer to retain and go by their complete maiden name after marriage to preserve their individual identity. "But when they approach the family court to initiate a divorce dispute or a plea for protection from domestic violence few years later or after decades of living with their maiden name, the insistence by court staff to adopt their husband's name comes as a shock and sends their litigation-induced stress levels soaring," said a Mumbai family law lawyer.

Majlis activists said the arbitrary practice causes immense harassment to women litigants". "There is no logic in making women adopt the husband's name while seeking divorce when they hadn't used it all along," said Agnes.

The NGO informed the HC that the rigid and pervading practice of enabling a woman to file for divorce only after incorporating her husband's names was evident in appeals filed before higher courts too. The HC swung into action and its Registrar (legal & Research) informed Majlis on February 10, 2012 that it had amended the rule last September to facilitate greater freedom for women under the Family Court rules of 1988. It amended and added a proviso to Rule 5, which deals with the filing of cases in the family court.


New Delhi, July 6, 2012 The Hindu

Supreme Court grants man divorce from wife who crumpled his dress, and life too

J. Venkatesan

Crumpling the husband’s ironed clothes or hiding his motorcycle keys to prevent him from going to office may be childish acts, but would constitute ‘mental cruelty’ for grant of divorce, the Supreme Court has held.

A Bench of Justices Deepak Verma and Dipak Misra gave this ruling while granting divorce to Vishwanath Agrawal who sought to break with Sarla for causing him ‘mental cruelty’ — she used to crumple his ironed clothes and sometimes hide them and hide his motorcycle keys to prevent him from going to his factory; gave a false advertisement in a newspaper that he was a womaniser and addicted to liquor and also filed a criminal case against him.

Rejecting the findings of the trial court and the Bombay High Court that there was no direct evidence and that the grounds complained of by Mr. Agrawal were only childish acts on the part of Sarla, the Bench said: “It does not require Solomon’s wisdom to understand the embarrassment and harassment that might have been felt by the husband. The level of disappointment on his part can well be visualised like a moon in a cloudless sky.”

The Bench said: “That apart, in the application for grant of interim maintenance, she had pleaded that the husband was a womaniser and drunkard. This pleading was wholly unwarranted and, in fact, amounts to a deliberate assault on his character. Thus, we have no scintilla of doubt that the uncalled-for allegations are bound to create mental agony and anguish in the mind of the husband. The factual matrix would reveal that the husband comes from a respectable family engaged in business. At the time of publication of the notice, the sons were quite grown up. The respondent-wife did not bother to think what impact it would have on the reputation of the husband and what mental discomfort it would cause [him]. It is manifest from the material on record that the children were staying with the father. They were studying in school and the father was taking care of everything. Such a publication in the newspaper having good circulation can cause trauma, agony and anguish in the mind of any reasonable man. In fact, it can decidedly be said that it was mala fide and the motive was to demolish the reputation of the husband in society.”

The Bench said: “The cruel behaviour of the wife has frozen the emotions and snuffed out the bright candle of feeling of the husband because he has been treated as an unperson. Thus, analysed, it is abundantly clear that with this mental pain, agony and suffering, the husband cannot be asked to put up with the conduct of the wife and to continue to live with her.”

The Bench directed the appellant to pay her Rs. 50 lakh as permanent alimony and allowed his appeal.



Dear divorce: Wife pockets Rs 5cr alimony

Smriti Singh, TNN | Sep 11, 2012, 06.32AM IST


NEW DELHI: This could perhaps be one of the biggest divorce settlements cleared by a trial court in recent times. A Delhi-based couple has mutually agreed to part ways after 20 years of marriage with the wife walking out with Rs five crores as full and final alimony.

The final settlement was recently cleared by a family court in Saket after the husband-a Delhi-based businessman-agreed to pay Rs five crores towards the maintenance of his wife and daughter.


The couple, which had married in the year 1992, filed for the divorce in February 2012 and the husband had initially agreed to pay Rs one crore as the final settlement for their divorce. However, during the intervening period of six months, the man decided to pay Rs four crores extra as the alimony.


The couple, who have two minor children-a boy and a girl, have also decided to take the custody of one child each. While the husband will take care of his son, the wife will raise their daughter. The husband has already paid Rs 50 lakh to the wife. The agreement states that out of Rs 5 crores, the husband will make a fixed deposit of Rs 2.5 crores for his minor daughter. The remaining Rs 2.45 crores will be used by the wife to buy a house of her own.


After the hearing, the family court gave its approval on the basis of the settlement deed, which stated that after the realization of Rs 5 crores, the right of the wife on the properties of the husband will stand extinguished.


Prabhjit Jauhar, counsel for the husband, said that the couple have reached upon an agreement and will also be allowed to visit their children as and when they want. "With the settlement in order, both the husband and wife have been able to sort out their differences and have further undertaken not to interfere in each other's lives in the future. As such the entire matrimonial disputes at the end of day boils down to payment of
alimony and once it is sorted, the couple can withdraw all the litigations against each other and thereafter live happily," Jauhar said.



What alimony, honey? I just quit my job

Devanshi Seth, TNN | Aug 2, 2012, 12.00AM IST

A growing number of men are quitting their jobs or being 'disowned' by the family business to avoid paying alimony to their wives.

When the honey's gone, it's just about the money, isn't it? Ask couples seeking divorce, and the legal wrangles they end up in while claiming or evading maintenance could put any movie to shame. Now, to avoid their spouse from having any monetary advantage over them, men are even quitting their high paying jobs.


Quitting jobs during a divorce plea has become routine, going by Justice Roshan Dalvi's observation in a recent case where the husband quit a `3crore-per-annum (plus bonuses) job with Cairn India, just so he could avoid paying a substantial sum as maintenance to his wife and three children. Within a week of filing for divorce, the husband had resigned from his high paying job, transferred `5.5 crore to a separate account, moved to
Chicago, where he now lives, and claimed to be jobless. "Why did your client shift to Chicago? He should have gone to Sholapur instead. He proudly claims to have been dismissed. Judicial notice is required to be taken of the fact that in cases where husbands refuse and neglect maintaining the wife and children, they show themselves to have been dismissed," said Justice Dalvi.

However, this ploy isn't new, says
Shobha, a lawyer at Delhi High Court, who goes on to cite cases as far back as 1983, where men quit their jobs - high paying or otherwise - just to reduce the amount they would have to pay as alimony. But the trend's picked up in recent years, she adds. "Not just that, men often end up seeking maintenance or alimony from their wives, by proving that they're jobless. In 2011, I was the legal counsel in a case where the man not just presented a case in court of being insolvent and that his business had gone bust, but also ended up having the wife, an entrepreneur, pay him `20,000 per month as his maintenance, a car and some other assets," says Shobha.

When Meerut-based Trisha Pradhan*, then 37, and her husband filed for divorce 11 years after a rocky marriage, she least expected her husband to evade payment of alimony and maintenance for their son by quitting his job with an IT major in Noida. But that's exactly the ploy he used. "We were filing for divorce on grounds of mutual consent, so this was a little out of the blue. He actually turned around and asked me to support him after divorce since I was working. Thankfully, the court wasn't taken in by his case, and ordered him to pay for the alimony, as well as our son's maintenance, by selling his ancestral property. I did forgo the fight for the alimony, though, because the divorce proceedings were getting so ugly," relates Trisha.


While salaried men quit jobs, those involved in family businesses resort to far more astute measures to avoid their monetary obligations, says Saif Mahmood, another advocate with the Delhi High Court.

"The effort is to reduce by any way possible the maintenance that the man would have to pay to his ex-wife and children, if any. Business families try to prove that the establishment belongs to the father, and that the son seeking divorce receives a paltry amount as salary. Some families even go to the extent of putting a notice in the papers disinheriting their son before the divorce proceedings begin, just so they can show in court that the man is not in a position to pay alimony," says Saif Mahmood.

Karan Mehrotra*, 24, did something similar before seeking divorce from his estranged wife. They'd been married for barely four months before they realised this relationship wasn't going to work. But before going to court, the Mehrotras, acting on the advice of their legal counsel, ensured that Karan had nothing to do with the flourishing family business, at least on paper. He was debarred from family property through a legal notice in the papers. "I was also advised to stay away from home. I took a room on rent during that period," says Karan, who started a business in his mother's name later. "My wife had made me go through hell for the time that we were married, and there was no way we would pay her a penny in maintenance," he adds.

But to make villains out of all men would be painting the picture in one colour. "The reason why such tactics are resorted to is because the amount of maintenance being sought by women and granted by courts is so high these days," adds Saif. Advocate Pradeep Norula couldn't agree more. "It's true that men use these ploys to conceal their income, or quit their jobs to avoid paying high maintenance/alimony. But courts are able to see through the ruse if a man has quit the job under what I would term as 'suspicious circumstances'. However, it's also true that women often claim higher alimony than men can afford," he says.
*Names changed on request



Second wife no bar to maintaining first, rules Bombay high court

Rosy Sequeira, TNN | Sep 27, 2012, 02.30AM IST


MUMBAI: A second marriage is no reason to stop maintaining the first wife or to give her low maintenance, the Bombay high court ruled while recently hearing a petition filed by a Muslim woman.

The court said it is for the husband to determine whether he is financially able to maintain two wives when marrying. More than doubling the plaintiff's maintenance, it pointed out that even Islam entitles a man to remarry if he is capable of maintaining his wives equally and fairly.


Justice Roshan Dalvi was hearing a plea filed by 30-year-old Sajida Khan. Sajida married Anwar Khan, a software engineer with a foreign bank, in February 2007. Following marital discord, Anwar, now 32, left her at her parents' place. He claimed giving her talaaq in May 2008.


In November 2010 however, the family court in Bandra, while hearing the matter, adjudged there was no documentary evidence to prove the talaaq. It directed Anwar to give Sajida a monthly maintenance of Rs 7,900, which was about one-fourth of his Rs 31,937 salary. The calculation was based on Anwar's plea that the other three-quarters of the salary were required to sustain himself, his second wife and a child from the second marriage.


In early 2011, Sajida approached the high court, contending that the maintenance was insufficient.


Her advocate Saeed Akhtar argued that Anwar was "duty-bound to maintain his first wife as she has not been divorced". In her July 24 order, Justice Dalvi agreed. The judge said the family court had made a "fundamental error" in reasoning that Sajida's share should be only one-fourth of Anwar's salary. The HC said a husband and wife are equal in law and have equal rights and obligations.


Stating that the wife's share must be on an equal footing, Justice Dalvi raised Sajida's maintenance to Rs 18,000 a month. "Each is entitled to an equal share in earnings and properties. Hence, if the husband is in a position to earn, the fact that he remarried and has a second wife cannot bring down the quantum of maintenance for the first wife, whom he failed and neglected to maintain. It is for the husband to determine if he is in a proper financial position to have and maintain two wives," read the judge's order.


Justice Dalvi added: "The second marriage is not a reason not to maintain the first wife.... In fact, as per the enjoinment in Islamic law, the respondent would be entitled to marry for the second time if he was capable of maintaining both the wives equally and fairly."


Anwar filed an affidavit in the high court, arguing that his service had been terminated, while Sajida told the court that Anwar earned Rs 60,000 a month. Justice Dalvi ruled that there was no documentary evidence to prove Anwar's claim and added that neither the second marriage nor the termination of service absolved him from his "seminal liability, obligation and responsibility of maintaining his wife".


(Names of parties were changed to protect their identity)



Husband should pay maintenance even if he is jobless: HC

Agencies : Madurai, Tue Nov 20 2012, 16:45 hrs

A man, though jobless, should pay maintenance to his wife as ordered by court in divorce case, Madurai Bench of the Madras High Court has ruled.

Justice G Rajasuriya said the husband cannot claim that he was poor, in order to dodge his responsibility of providing monthly maintenance to his wife.

"A husband has to take care of his wife somehow or other even if he is jobless," the Judge.

He was dismissing a civil revision petition filed by the man challenging the March 3 last order of family court, before which the couple have filed divorce petition, directing him to pay Rs 2,000 as interim maintenance.

The Judge also rejected a petition by the woman seeking enhancement of the interim maintenance to Rs 7,000.

The man had pleaded that he did not have the source to pay the maintenance ordered by the lower court.

His wife said the maintenance ordered by the court was too low.

In his order, the Judge said: "A hale and healthy man is expected to work to maintain himself and his dependants. He has to maintain his wife who is incapable of maintaining herself. Somehow or other husband should maintain."

Rejecting the prayer for enhancing the maintenance amount of Rs 2,000 granted by the lower court, he said the plea was justifiable if there was clinching evidence to prove that the husband was well off.

The petitioner did not produce any such evidence to prove that her husband had enough money, he observed and confirmed the maintenance amount granted by the lower court.

Besides, the Judge also directed the man to provide Rs 3,000 to his wife for paying the cost of litigation.

The Judge directed the family court to dispose the divorce petition, pending since 2007, in three months.



Religion cannot be thrust upon a child: Bombay HC

Agencies : Mumbai, Sat Dec 08 2012, 15:28 hrs

Observing that religion cannot be thrust upon a child, the Bombay High Court has rejected a plea to hand over the custody of a three-year-old girl, born to a Christian father and Hindu mother, to her paternal family who wanted to raise her as a Roman Catholic.

The matter pertained to a minor girl whose father had fatally stabbed his wife and was behind bars. The father, his sister and the girl's maternal grandfather had filed guardianship petitions seeking custody of the child.

The girl's father and aunt submitted that they wanted the child to be raised as a Roman Catholic. They said Catholic rituals must be performed and she must attend a convent school where the ideals of Christianity would be taught.

Justice Roshan Dalvi observed, "It would be insulting to Christianity to see the father of the child, who is a Christian, being convicted of murder of his wife. The child would not get the ideals of Christianity from a father who has been imprisoned during her minority having been charged with murder of her mother and cruelty towards her."

The judge also dismissed the argument that a man's religion must prevail upon his child, saying it was directly contrary to the freedom of religion under the Constitution and it would also be gender discriminatory.

The court decided to give the custody of the child to her maternal grandfather, taking into consideration the fact that the girl, after her mother's death, was living with her maternal grandparents.

The judge observed, "There is no greater religion among the great religions. What is to be understood in consideration of religion of the minor is that a minor who has been brought up on the tenets of any of the great religions be not disturbed by thrusting upon the minor the tenets or traditions of another religion which would cause stress and trauma upon the minor during the delicate years of his or her growth.

"It would be in the interest of the child if she is kept away from any religious dogma to which she has not been exposed in her infancy so as to leave her childhood care free and stress-free," the judge further remarked.

The girl's paternal aunt argued that section 17 of the Guardians and Wards Act, 1890, requires the court to take into consideration the religion of the child and that of the proposed guardian.

Her lawyer Uday Warunjkar contended that since the father of the child was a Roman Catholic, the girl must be brought up as a Roman Catholic.

However, the judge rejected the argument stating that the concept of religion, as envisaged in section 17 of the Guardians and Wards Act, does not contemplate that in our patriarchal society only the religion of the husband must prevail.

The judge opined that this would be contrary to the freedom of religion, which allows each individual to profess and practice the religion of his or her choice. It would be in the interest of the child of she is kept away from any religious dogma.

The judge further observed that the child had already adjusted to living with her grandparents and that there there was no reason to disturb the custody of the child at the behest of her father, who has at this stage, rendered himself unfit for seeking her custody.

The court noted that the girl's aunt had not sought the custody of the child until December and that her guardianship petition was not self-motivated but filed on instructions of her father from jail.


Wife can ask maintenance if hubby gets another wife at home: HC

PTI | Dec 13, 2012, 01.24 PM IST

MUMBAI: A wife cannot be faulted for not living with husband when he brings another woman in the house and she can demand maintenance on this ground, the Bombay high court has ruled in a divorce case.

"Whether or not he (husband) may be entitled under the Personal Law to bring her (second wife), it has no bearing upon the hurt that the wife would feel upon having another wife in the house. In such cases emotional and mental violence is not only apparent, but proved. That itself would entitle any wife to have just cause in not living with her husband and demanding maintenance," ruled Justice Roshan Dalvi.

The judge was hearing a petition last week filed by Irfan Shaikh, challenging the February 6 order of a family court in Nasik asking him to pay maintenance of Rs 2,000 each to his wife and child from the date of filing of petition, November 12, 2009.

The high court noted that though the husband claimed that the wife deserted him and he never deserted her even by remarriage, the wife had sent legal notice to him. It was not claimed by the husband. It was also not replied by him. The legal notice requested reconciliation and cohabitation, which was not done.

"Hence it is seen that the husband's case is false and there has been no attempt at reconciliation or cohabitation or conciliation between the parties. That evidence not corroborated is, therefore, an important absent factor," Justice Dalvi observed.

"The learned Judge has also rightly considered that the husband deserted the wife in as much as he never paid any maintenance to her and in fact got married to another by which he deserted her," the judge remarked.

Irfan got married to Nilofar on June 3, 2007. They separated on June 17, 2009. The application for maintenance was filed in November 2009. Irfan married again in December 2009.

A criminal complaint under Section 498A IPC was filed by the wife on December 24, 2009.


 



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