Divorce and Marriage Laws
Annulment Of Marriage
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place (though some jurisdictions provide that the marriage is only void from the date of the annulment. In legal terminology, an annulment makes a voidable marriage null. If a marriage is void ab initio, then it is automatically null, although a declaration of nullity is required to establish this. The process of obtaining a declaration of nullity is similar to an annulment process.
A petition for the annulment of marriage is moved on certain grounds specified in various matrimonial laws. Once a petitioner is successful in proving its case, marriage is declared null and void. Resultantly, the court considers that the marriage has not taken place at all and the tag of the ‘divorcee’ is not attached. Annulment of marriage is very important in the scheme of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized on the strength of fraud or where the marriage is solemnized despite the fact that the responding spouse was already married.
Contested Divorce
Contested Divorce implies party desirous of divorce approach the family Court/Civil Court for the dissolution of marriage. Spouse seeking divorce has to take one of the grounds provided under the law of contested divorce.
There are different laws dealing with contested divorce for the different section of the Society. Hindu Marriage Act, 1955 provides ground for divorce for Hindus which includes Sikh, Jain and Budh religion. Indian Divorce Act,1869, provides grounds for divorce for Christian. Special Marriage Act provides grounds for divorce for people married under civil law and whose marriages are registered under Special Marriage Act, 1954. Broad grounds for Divorce are as under:-
- Divorce on the ground of Adultery
- Divorce on the ground of Cruelty
- Divorce on the ground of Desertion
- Divorce on the ground of Conversion to another religion
- Divorce on the ground of Unsoundness of mind or mental disorder
- Divorce on the ground of Virulent and Incurable form of leprosy
- Divorce on the ground of Venereal disease
- Divorce on the ground of Renounce the World
- Divorce on the ground of Not heard for a period of seven years or more
- Besides above, there are couples of additional grounds for divorce available only to female.
Contested Divorce Procedure
Contested Divorce proceedings commences with the filing of Divorce petition. Family Court/Civil Court causes a notice to be served on the opposite party for appearance.
On receipt of summons, opposite party has to appear in person and/or through divorce lawyer and file the response.
The court may try to resolve the differences between parties to start with by conducting conciliation or sending the matter to counselor/mediation center. If there is no settlement between parties, divorce case proceeds as per procedure.
Once initial allegation and response and counter allegations process are over, which is called pleading, case is set up for evidence after determining issues of controversy between parties. Party initiating contested divorce has to start with the evidence first. Other party is given a chance to cross-examination witness/es of the opposite party.
After that responding party i.e. Respondent has to lead evidence. Similarly, cross-examination process is conducted by the divorce lawyer of opposite side.
After the conclusion of the evidence, Final arguments are advances by divorce lawyers from both sides, Mumbai. Then the court pronounces judgement. If party initiating divorce is able to prove the case, Family Court/Civil Court will grant the decree of Divorce.
Contested divorce requires expert divorce lawyer either in prosecuting or defending divorce case. Such expert divorce lawyer guides, strategize and plan the whole action. Effective planning by divorce lawyers increases the probability of success in the trial of the case for a favourable outcome.
Contested Divorce is a long process requiring through professional work and approach. Good Divorce lawyer takes through these challenging and arduous tasks by his expertise and your counsel through turbulent and emotional time.
Mutual Consent Divorce
Divorce by Mutual Consent is the simplest and easiest way of dissolving the marriage. Procedure for Mutual Consent Divorce is laid down as under for easy understanding:-
Both Parties i.e. Husband and Wife have to reach to Mutual understanding and agreement regarding terms and conditions for Divorce.
On the basis of settlement and agreement, petition for Mutual Consent is drafted. Under Hindu Marriages, such Petition is filed under section 13B of the Hindu Marriage Act. Under Christian Marriages, section 10A of the Indian Divorce Act. Under secular or civil marriages, section 28 of the Special Marriage Act.
Divorce Petition will be drafted which will include terms of settlement agreed between parties.
Such Mutual Consent Divorce Petition shall be filed in the Court as court procedure.
Matter will come up for hearing in the Court and generally, parties have to be present before the Court and their statement is recorded.
After the recording of statements, First Motion will be passed.
Court gives six months time to parties to reconsider their decision. This is called cooling period generally.
Second Motion is set up.
Aforesaid steps shall be repeated. Statement of parties will be recorded again.
After such recording of statement, Court will grant pass order and judgement, decree for divorce is granted.
498A & Other Criminal Proceedings
The payment of a dowry gift, often financial, has a long history in many parts of the world. In India, the payment of a dowry is prohibited in 1961 under Indian civil law and subsequently by Sections 304B and 498A of the Indian Penal Code. These laws were enacted to make it easier for the wife to seek redress from harassment by the husband’s family. Anti-dowry laws have been criticized by men’s rights groups, who accuse women and their families of misusing the laws.
In India, there are civil laws, criminal laws, and special legislative acts against the tradition of dowry. Someone accused of taking dowry is, therefore, subject to a multiplicity of legal processes.
Presently, matrimonial cases are not confined within the realm of civil and family laws. Such cases can have criminal character too. Generally, wherever there is a cruelty exercised by the husband or his relative upon the wife in regard to the demand of dowry, a criminal case under section 498A of IPC is registered against the husband and the other relatives who were causing such cruelty or whose name is mentioned in the complaint by the wife. Along with this, a case under section 406 of IPC is registered for criminal breach of trust besides other provision of IPC and Dowry Prohibitions Act.
In such cases, at the first instance, husband and his relatives have to apply for the interim protection, anticipatory bail, and regular bail, etc. We provide our expertise service in this regard in defending as well as prosecuting the case. We have vast court experience in this regard. We also try to effectively negotiate and settle the matter in between the parties so that the parties can be saved from the traumatic experience of criminal proceedings.
Domestice Violence
The above being criminal remedies, a civil remedy was brought into the picture in 2005 (amended in 2006). This was called the “Protection of Women from Domestic Violence Act”.
For the purpose of this act, Domestic Violence includes the demand for dowry:
For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it –
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
This act empowered the lower courts to issue “protection orders” on the complaint of a woman against her male relatives. The protection orders could include restraining orders on the husband and others, monetary compensation, and residence orders Mumbai.
Though it is a civil remedy, violation of protection orders results in criminal penalties (including imprisonment).
Protection of Women from Domestic Violence Act, 2005, popularly called as Domestic Violence Law or DV provides variety of rights to women victim of Domestic Violence.
Such rights include the claim of monetary relief, rights to residence, compensation for domestic violence, protection order, and child custody amongst other reliefs.
Domestic violence Act has come into force with the objective of expeditious disposal of the claim of women who are victim of domestic violence. Domestic violence complaint is filed in the Court of Magistrate who is empowered to pass exparte orders. Domestic violence has come into force with the objective of providing economic justice and independence to women victim of domestic violence.
Domestic violence law specifically provides the right to residence. A right to residence includes in living in the shared household irrespective of the fact whether the wife has right, title or interest over the property/residence. This specific provision is inserted in Domestic Violence law to arrest the menace of abandoning the woman and children, if any, without roof and shelter in case of matrimonial disputes. DV Act also provides for alternate accommodation. Hence, law cast a mandate on the husband to provide residence to the wife. Such residence can be shared household where husband and wife lived together and made such house as their matrimonial house. Alternatively, the law mandates husband to provide alternate residence comparable to the one previously enjoyed by the wife while living together.
Maintenance
Maintenance was regarded as a duty, a duty of a Hindu, Which he owed to his dependent relations and by which both, the person and property were bound. There was a distinction between legal and moral obligation to pay maintenance. When it was legal, it was binding even if the person did not have any property, but when it was moral and optional; it was matter of conscience and was unenforceable in the law of courts. However, on the death of a Hindu who had the moral obligation to pay maintenance, the said moral obligation used to become transformed, in majority Of cases, into a legal obligation. It could then be enforced against the property left by the deceased. Hindu the principle underlying such rule was that the heir of the deceased takes the estate not for his own benefit, but also for the spiritual benefit of the person whose property he inherited.
This is an integral part of all matrimonial proceedings. Application for maintenance can be moved by either of the spouse who does not have the sufficient means to maintain him/herself. Maintenance can also be classified into two parts:
Interim Maintenance: Such maintenance is provided during the pendency of the case in the court. The underlying idea behind giving such maintenance is that one party should not loose and stand on a weaker footing at the time of contesting case. Quantum of such maintenance is dependant on variety of factor but most important aspect is the status of the parties prior to the filing of the case and the income/salary of the spouse against whom such maintenance is claimed. Court always tries to bring both the party at equal platform and footing.
Permanent Maintenance: It is awarded at the time when whole case is finally decided. It could be periodical or monthly depends upon the facts and circumstances of the case.
Transfer Petition In Supreme Court
Transfer Petition can be filed either in Supreme Court or High Court. Transfer Petition can be filed by either parties prosecuting or contesting case.
Transfer Petition can be filed either in Supreme Court or High Court. Transfer Petition can be filed by either parties prosecuting or contesting case.
Transfer Petition is filed in concerned High Court when issue of jurisdiction is within same state and High Court.
While taking matter by Supreme Court in Transfer Petition, Supreme Court can refer the matter to LOK ADALAT or Mediation Centre in Mumbai High Court, Mediation Center. Object of such reference in mediation is to bring parties face to face and across the table for reconciliation of disputes or amicable settlement. In matters referred in Supreme Court Lok Adalat, sitting judge of the Supreme Court acts as Mediator and felicitator to reach to broad understanding. Such approach by the Supreme Court in Transfer Petition of Divorce matters results in tremendous success. Judges of the Supreme Court, presiding in Lok Adalat adopts out of the box and practical solution keeping in mind utmost importance of the relationship between two individuals in Divorce Case who became bitter enemy in Court Proceedings.
Transfer Petition in Supreme Court is filed under section 25 of the Code of Civil Procedure-1908 which gives Supreme Court of India original Jurisdiction to entertain and deals such issues.