Friday, September 29, 2017

Instant and Immediate Divorce in India

Supreme court in land mark Judgment has waived a 6 months cooling period in the case of Mutual consent divorce. It held Section 13B(2) of the Hindu Marriage Act is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. It has also said that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice. Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions: i) How long parties have been married? ii) How long litigation is pending? iii) How long they have been staying apart? iv) Are there any other proceedings between the parties? v) Have the parties attended mediation/conciliation? vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties? The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony. On such cases when a party make a petition to dispense the 6 months cooling period, then the court will use its discretionary power to grant mutual consent divorce as early after a week time. 

The Author Mr.K.P.Satish Kumar M.L. is the leading divorce lawyer in Chennai. 

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கணவன் தன்னுடைய 2வது மனைவியை தன்னோடு சேர்த்து வாழ மனு தாக்கல் செய்ய முடியாது.

முதல் மனைவி உயிரோடிருக்கும் போது இரண்டாவது திருமணம் செய்து கொண்ட கணவன் தன்னுடைய 2வது மனைவியை தன்னோடு சேர்த்து வாழ (Restitition Conjugal Rights) உத்தரவிடும் படி குடும்ப நீதிமன்றத்தில் மனு தாக்கல் செய்ய முடியாது. அவ்வாறு செய்யப்பட்ட திருமணம் இந்து திருமணச் சட்டம் பிரிவு 5ல் கூறப்பட்டுள்ள நிபந்தனைகளுக்கு முரணானதாகும். இந்து திருமணச் சட்டம் பிரிவு 11ன் படி அத்தகைய திருமணங்கள் சட்டப்படி செல்லாத திருமணமாகும். எனவே 2வதாக திருமணம் செய்து கொள்கிற போது முதல் மனைவி உயிரோடு இருந்தால் 2வதாக திருமணம் செய்து கொண்ட மனைவியின் மீது இந்து திருமணச் சட்டம் பிரிவு 9 அல்லது 13 ன் கீழ் கணவர் எந்த ஒரு மனுவையும் தாக்கல் செய்ய முடியாது

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Children born out of void marriages are legitimate

Supreme Court dismissed the appeal filed by Centre, challenging the judgment of Madras High Court which correctly held that children though born out of void marriages are still considered legitimate.

This matter pertains to a situation where the son of deceased born out of second marriage was considered for appointment in Southern Railways on compassionate grounds. In the instant matter, the southern railway rejected the claim of appointment as the child was born out of the second wife and the second wife was not entitled to any benefits as per the instructions of the railway board. As per the circular of Railway Board dated 2.1.1992 appointment on compassionate ground cannot be granted to children born out of the second wife. 

However, the bench Madras High Court did not agree with the Railways contention and while relying on the judgment of Rameshwari Devi v. State of Bihar given by Supreme Court held that the second marriage during the subsistence of first marriage is though considered illegal but children born out of the second marriage are nevertheless considered legitimate and are lawfully entitled to the estate of the father. As per Section 16 of the Hindu Marriage Act, children born out of void marriages are considered as legitimate. 

The Centre filed an appeal against this judgment of the Madras High Court. The Supreme Court, however, dismissed the petition filed by the Centre and termed it as unnecessary litigation. 
The Author Mr.K.P.Satish Kumar M.L. is the leading Child custody lawyer
For Free Legal quires call Daniel & Daniel @ 9840802218

Divorced Daughter is eligible for appointment compassionate grounds

The Calcutta High Court held that a divorced daughter comes within the definition “unmarried daughter” and is eligible for appointment on compassionate grounds.
Chief Justice Nishita Mhatre, Justice Tapabrata Chakraborty and Justice Dipankar Datta, “The beneficent scheme underlying the settlement would be thrown out of gear in the event, a restrictive meaning is applied and benefits are not extended to a divorcee daughter, who returns back to her father’s family after divorce and cessation of her relationship with her husband. Such interpretation cannot be construed to be an instance of misplaced sympathy or to be based upon a pretentious pulpit of morality.”
In the present matter, an appeal was filed challenging the order passed by a single judge in which appellants were denied relief by holding that a divorced daughter of an employee is not entitled to the benefit of compassionate appointment/ monetary compensation.
The respondents contended that daughter ceases to be a member of the family once she is married. After getting divorced her status does not change back to daughter. Also, the respondent relied on National Coal Wages Agreement which does not list divorced daughter as a dependent, hence, making her ineligible for appointment on compassionate grounds.
The court observed, “There could hardly be and, in fact, there is no dichotomy of lexicographic opinion that the word ‘unmarried’ does not only mean ‘never having been married’ but, if the circumstances do permit and warrant, it may also mean ‘not married on the relevant.”
“In construing the words “unmarried daughter”, such construction that sub-serves common good and not the reverse ought to be adopted; and the words “unmarried daughter”, as noticed earlier, are wide enough to take within its fold one who does not have a husband on the material date. There is no earthly reason as to why bearing in mind the purpose or object of the scheme for providing employment opportunity or monetary compensation to a dependent of a deceased worker, the court should cut down the amplitude of the word ‘unmarried’, which is intelligible and can be given full meaning in the context where it is used.”
Therefore, in the present matter, the Court granted a month’s time to the respondent to calculate the Appellant’s financial benefits in terms of para 9.5.0(ii) of the NCWA, which gives an option to the female dependent to either accept monthly monetary compensation or employment. Arrears were to be disbursed to her within 2 months.
The Author Mr.K.P.Satish Kumar M.L. is the leading Family Court Advocate in Chennai
For Free legal queries to Daniel & Daniel @ 9840802218

Six-months wait for divorce under Hindu Marriage Act waived off by SC

If a Hindu married couple is separating by mutual consent then they no longer need to wait for six months for getting a separating order from the court.
On Tuesday Supreme Court held that marriage between two Hindus can be legally terminated in just a week as the “cooling off” period can be waived off as it is not mandatory.
The Apex court clarified that if all the efforts to reunite parties and mediation and conciliation also fails between them then the wait for a six-month period can be done away with.
This ruling was passed by the court after a petition was filed by a couple seeking direction to waive off the cooling off period as they have been living separately for 8 years and they had already settled all issues pertaining to child custody and alimony.The couple made a plea before the Supreme Court that delay in divorce would affect their chances to resettle in life.
In the present matter, the court took a stand that delay in proceedings only prolongs subsequent resettlement. Waiving off period can be considered if the parties have been living separately already for a year.
The court said, “The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of the status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off period was to safeguard against a hurried decision if there was otherwise the possibility of differences being reconciled.”
The bench comprising of Justice AK Goel and UU Lalit said that the object of the cooling off period is to safeguard against a hurried decision taken by a couple to get separated and to allow them to explore ways to settle their disputes however this could not be made mandatory.
As per Section 13B(2) of the Hindu Marriage if both the parties do not change their pleas for divorce in a time period not less than six months and not later than 18 months, then the court pass the decree to declaring the marriage to be dissolved.
The court observed that the period of six months to 18 months provided in section 13B is an interregnum to give time and opportunity for the couple to reflect on their move. This period can be waived off if conciliation fails and parties have genuinely settled their differences pertaining to alimony, custody of the child or any other issues pending between them.
The bench observed, “The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option.”
The Supreme Court bench after examining all the issues came to the conclusion that Section 13B(2) is mandatory and not a directory. The court held that the cooling off period could be waived off if the court is satisfied that the parties are living separately for more than a year with no chance of reconciliation and a further waiting period would only prolong their agony. The bench held that the parties can file a waiver application just one week after the divorce petition is filed and the court will take a call on the waiving off period. 
The Author K.P.Satish Kumar M.L. is the top Divorce lawyer in Chennai
For Free Legal queries call Daniel & Daniel At 9840802218

Centre to streamline issues related to maintenance

Centre has constituted a district-level committee to address and streamline the issues related to maintenance as large number of women are facing difficulties in getting maintenance despite the fact that the court has ruled in their favour.   
To resolve the procedural difficulties in accessing money awarded to women by court in cases of divorce or domestic violence, the central ministry of Child Development, Home Affairs and Law and Justice are involved in heavy deliberations on how to effectively deal such complaints from women.
The proposed committee will be headed by a district judge with the superintendent of police and representatives from civil society group as its members. This proposal if implemented will bring huge relief to women specifically to those who belong to lower strata of society since they don’t have funds to pursue legal battles.
This move of the centre is a step forward in strengthening the rights of women after the recent judgement of Supreme Court which declared the practice of triple talaq as unconstitutional.
Post the verdict from Supreme Court, the government has clarified that henceforth any case of instant triple talaq will be treated as a case of domestic violence.
The minister of women and child development has written a letter to Law Minister Ravi Shankar Prasad telling him that the ministry has been receiving a plethora of complaints relating to maintenance. The ministry has urged to expedite the working of the committee so that such matters can be addressed at the earliest.    
Maneka Gandhi said, “The objective is to monitor the timely disbursal of the maintenance awarded by the court. The committee will also supervise the speedy execution of warrants in case one is being issued by the court towards the grant of maintenance.
The law ministry is also deliberating on approaching Chief Justice of India and requesting him to issue an advisory to all chief justices of the High court to ensure that the subordinate courts should simplify the procedure and “ensure timely execution of proceedings with regard to grant of maintenance of women.  
Article by the Mr.K.P.Satish Kumar M.L. Top Divorce Advocate in Chennai
For Free legal advice call Daniel & Daniel @ 9840802218

Supreme Court says not speaking to bride does not amount to cruelty

The Supreme Court in a recent appeal of Section 498A observed that if the in-laws and husband do not speak to the bride it does not amount to cruelty.
A lady filed a complaint under 
Section 498A to the police, that after her marriage she stayed with her husband and in-laws for 20 days, during which she was left completely alone and no one talked to her.
She stated that her husband was "not even willing to talk freely to her despite her sincere efforts". She accused the husband of avoiding her and refusing to consummate the marriage.
The SC had earlier in a case ruled that refusal to cohabit could be a ground for seeking divorce. After the husband left for Australia where he worked, no one in his family talked to the woman, forcing her to leave the matrimonial house for her parent’s place.
She claimed that her parents had spent Rs 15 lakh on the marriage and Rs 20 lakh on gold ornaments. The Hyderabad police filed a charge-sheet and the case is pending before the metropolitan magistrate.
The Hyderabad high court rejected a petition by the husband and his parents seeking quashing of the case. They appealed to the Supreme Court. A bench of Justices Arun Mishra and Mohan M Shantanagoudar initiated the wife's complaint and said her story did not reveal any offence under Section 498A cruelty at matrimonial home to drive the woman to commit suicide, cause injury to her or harassment for dowry) or Section 406 (breach of trust) of Indian Penal Code as there was no demand for dowry. The bench quashed the case terming the complaint to be devoid of any charge under Section 498A or Section 406 because crueltmeans any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, and the women in the present case was not subjected to any such cruelty.
Article by K.P.Satish Kumar M.L.  Top Divorce Advocate in Chennai
For free queries call Daniel & Daniel @ 9840802218