Revision as of 13:01, 6 February 2014

Wife can stay with husband till divorce

‘Until divorce, wife can stay with hubby’

The Times of India 22/04/2013

TIMES NEWS NETWORK

New Delhi: A trial court has said that a woman and her child have every right to reside in the household she shared with her husband after marriage, till the disposal of any matrimonial dispute between them.

Metropolitan magistrate Rachna Lakhanpal made these observations while passing interim residence order in favour of a woman who had moved the court seeking directions to her estranged husband to allow her to live in the matrimonial house till a dispute concerning domestic violence was decided.

“Complainant (woman) and her child have every right to reside in the shared household till final disposal of the case and the respondents (estranged husband and his mother) are restrained from dispossessing her from the shared household till final disposal of the case without due process of law,” the court said.

While passing the order, the court held the man’s household is to be shared with the complainant since they resided there together after marriage.

The court also said that the husband and his mother, residing in northwest Delhi, would not create any hindrance to the woman using the facilities of kitchen and toilet or interfere with the supply of water and electricity to the portion of the household she would stay.

The magistrate also directed a protection officer to facilitate the woman’s peaceful entrance in the house while the SHO concerned was asked to provide necessary assistance if required. The court also directed the man to provide a maintenance amount of Rs 4,000 to his estranged wife and Rs 1,500 to the child per month.

In her plea for interim maintenance and residence order, the woman had alleged cruel treatment by her husband, whom she married in 2000, and told the court that she was thrown out of the matrimonial house. The allegations were denied by the husband. The court, however, said allegations of cruelty or counter allegations cannot be decided with the application for interim maintenance and interim residence.

Marriage should not be terminated merely because handsome alimony is promised

Apex court hits gender parity note in divorce case

Dhananjay Mahapatra TNN

The Times of India 2013/07/02

New Delhi: Irretrievable breakdown of marriage, coupled with promise of large amount of money as permanent alimony, has been cited by rich and powerful men to seek divorce from their wives when all was not well in the marital relationship.

Striking a gender equality note, the Supreme Court on Monday turned the tables and asked whether it would have granted divorce to a woman from her husband, who on developing some mental disorder had become completely dependent on her, if she promised a huge sum as permanent alimony.

The case related to Darshan Gupta and Radhika Gupta, who married in 1997 when they were barely out of their teens. Radhika’s first pregnancy was terminated due to medical reasons. The second pregnancy was again a very complicated one and the child had to be delivered through Caesarian section. She remained unconscious for a long time and developed serious mental disorder. The child died eight days after birth.

Though she was treated in reputed hospitals, she allegedly remained mentally ill. The husband claimed separation from her since 2002, breakdown of marriage and offered a large sum of money as permanent alimony to seek termination of marriage.

A bench of Justices P Sathasivam and J S Khehar rejected the husband’s plea and wondered whether a similar request by a woman would have been entertained by the apex court for grant of divorce from a husband who developed some mental disorder. Justice Khehar, authoring the judgment, concluded, “We have no doubt... that on a reversal of roles, the husband... would have never accepted as just the dissolution of his matrimonial ties...”

Ex parte divorce decree by foreign court invalid: HC

‘Irretrievable Marriage Breakdown Not Recognized Under Act’

Smriti Singh TNN 25/04/2013

The Times of India

New Delhi: In what can have serious implications for divorces involving NRIs, Delhi high court has held that a divorce obtained by an NRI from a foreign court without the spouse’s submission to the jurisdiction of that court is invalid.

The court has also held that a divorce granted by a foreign court on the ground of “irretrievable” breakdown of marriage is not recognised under the Hindu Marriage Act and the dissolution of marriage cannot be valid. The court’s ruling came while rejecting the claim of an Indian-origin UK resident that the Ilford County Court, UK, had in 2011 already granted a divorce.

The man had challenged the trial court’s order which had declared that divorce invalid. He sought dropping of the divorce proceedings against him on his wife’s plea for dissolution of marriage under the Hindu Marriage Act. The woman, through her counsel, Prashant Mendiratta, claimed that the foreign divorce decree was an ex parte decree which she had been unable to contest. “The said decree is not recognised in India, and as such, the petitioner is not entitled to any relief,” the counsel said.

The court cited a Supreme Court judgment which had held that a decree of divorce granted by a foreign court is not valid in India if the ground is not recognised by Indian law.

“Both parties are Indians and the marriage between them was solemnized at New Delhi according to Hindu rites and both are governed by the Hindu Marriage Act (HMA). Their marriage has been dissolved by a court in the UK on the ground of having broken down irretrievably which is not a ground for divorce under HMA ...” Justice Veena Birbal said.

The court also rejected the man’s argument that the UK court had made the decree “absolute” on the ground of “irretrievable breakdown” of marriage and his wife was also informed about the proceedings there.

Accepting the wife’s argument that the divorce granted by the court in the UK was an ex parte divorce decree, Justice Birbal said, “Respondent (wife) never submitted herself to the jurisdiction of the said (UK) court. On June 15, 2011, she had lodged a representation before the Ilford County Court informing that she was in India and had filed a divorce petition here.

“She also informed (the court) that she was in acute financial difficulty (and won’t be able) to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the UK court not to make the divorce decree ‘absolute” ... In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court,” the court said.

REINING IN RUNAWAY GROOMS: HC RULES

An ex parte divorce by a foreign court is invalid

To get a divorce from a foreign court, both parties have to submit to its jurisdiction

Ground of “irretrievable breakdown of marriage” not a ground under Hindu Marriage Act

STANDING INSTRUCTIONS

When faced with ex parte divorce cases, courts in India rely on a celebrated 1991 Supreme Court judgment

SC has empowered matrimonial courts to issue non-bailable warrants to enforce attendance of parties

In one case, HC prohibited NRI from obtaining one-sided divorce decree from a foreign court

If any NRI ignores court stay on ex parte divorce, it’s considered contempt of court

Hindu Marriage Act

Divorce for Hindu married to non-Hindu

Hindu married to non-Hindu can't get divorce under Hindu Marriage Act: Bombay high court

PTI | Dec 28, 2013

The Times of India

MUMBAI: The Bombay high court has held that a Hindu married to a non-Hindu in accordance with Hindu rituals cannot seek divorce under the Hindu Marriage Act.

Accordingly, a bench headed by Justice VK Tahilramani upheld a family court order which rejected a petition filed by Niranjani Roshan Rao, a Hindu, seeking divorce from husband Roshan Pinto on the ground that he was a Christian at the time of marriage and was professing the same religion till today.

As the family court rejected her petition, she moved the high court, which, on December 24, rejected her appeal and upheld the lower court order.

"We are of the view that an order passed by the learned judge of the family court is perfectly legal and calls for no interference in exercise of appellate jurisdiction," said the bench while dismissing the appeal.

The appellant had filed the petition in family court seeking a decree of nullity of marriage and alternatively claimed divorce on the grounds of cruelty. She said, on January 13, 1999, she was married to respondent as per Hindu rituals. At the time of marriage, she was a Hindu while the respondent was a Christian.

After their marriage, they continued to profess their respective religions. Even at the time of filing of the petition, they continue to practice and follow their respective religions.

The appellant-wife argued that their marriage was null and void as it was in contravention of essential condition of valid marriage provided under section 5 of the Hindu Marriage Act, i.e. both the partners should be Hindus at the time of marriage.

The family court rejected the petition in exercise of powers under Order 7 Rule 11 of CPC, as the petition did not disclose any triable cause of action.

In other words, the family court said the petitioner had no right to file such a petition under the Hindu Marriage Act and as such cannot seek any relief. Both were not Hindus at the time of marriage and hence do not fulfill the conditions laid down under the act.

The high court observed that the appellant herself has stated that the respondent was not a Hindu at the time of marriage or thereafter.

"If this condition is not fulfilled and there was no contravention of provisions under Section 5 of the Hindu Marriage Act, the family court was right in saying that she had no right to file such a petition", the bench said.

Moreover, provisions of Hindu Marriage Act can be applied in cases when both the spouses were Hindus and their marriage is performed as per Hindu rites and rituals, the judges said.

It is also an essential condition under the act that at the time of filing a petition for divorce, both the spouses were Hindus by religion, ruled the bench.

Alimony

Cannot be based on husband’s I-T returns:

Alimony can’t be based on hubby’s I-T returns: Guj HC

Saeed Khan | TNN

The Times of India

Ahmedabad: Asking a doctor to pay a monthly maintenance of Rs 15,000 to his estranged wife, Gujarat high court on Monday said an alimony cannot be decided on the basis of a husband’s income tax returns because these papers are not the gospel truth.

Rani Tahelramani had filed a case under Domestic Violence Act against her husband, Anup Vidhani, a Vadodara-based eye surgeon. She had also sought maintenance from her husband but a lower court turned down her plea saying a decision on her complaint would be taken soon. When the proceedings dragged on, she appealed in the sessions court seeking alimony.

The wife argued in the sessions court that her husband had a flourishing private practice and runs an eye hospital and has a monthly income of over Rs 1 lakh. Countering this, the surgeon told the court that he is ‘‘engaged by a private hospital’’ and paid an honorarium of Rs 4,000 per month. He even produced his I-T returns showing he was not earning much.

Not satisfied with the doctor’s arguments, the court last month asked him to pay a monthly alimony of Rs 15,000 from January 3. Aggrieved by this order, Vidhani approached the high court claiming he was not in a position to pay ‘such a huge amount’. Justice Akil Kureshi, however, upheld the sessions court’s decision and asked him to pay Rs 15,000 monthly as alimony.

Alimony for adulterous wife

‘Adulterous wife not entitled to alimony’

Rebecca Samervel TNN

The Times of India

Mumbai: A city court rejected a 38-year-old South Mumbai woman’s plea for maintenance from her estranged husband after it found she was involved in an adulterous relationship.

“The wife who engaged herself in (an) adulterous relationship cannot claim maintenance and cannot be allowed to take advantage of her own wrongdoings,” the court said.

The court accepted the 40-year-old husband’s plea seeking divorce on grounds of cruelty and adultery.

The couple was married in 1999 and had a son in 2001. The man carried out business at Nana Chowk and used to return home after 10pm. In his petition, he alleged that when he returned home early one day, he saw that his child had been left alone. The husband alleged that he repeatedly made attempts to contact his wife on the phone, but it was switched off. He stated that when the woman finally returned home at 7.45 pm, she gave evasive answers.

The man claimed the woman confessed the next day that she had gone out with her paramour to a hotel. The man further alleged that he confronted his father-in-law about the problem and told him that he could no longer co-habit with the woman. He filed the divorce petition in December 2005.

Both the wife and the man against whom her husband had levelled allegations gave their version to the court and denied having an affair. The woman claimed she was forced to write the confession and it was false. She alleged that it was her father-in-law, stepmother-in-law and sisters-inlaw who had harassed her for dowry and forced her to leave the home.

Taking the letter into consideration, the court observed that the woman could have easily complained to police and her parents about being forced to write it once she was at her parents’ home. In the absence of such complaints, the court said her version was not believable.

The court observed that a man cannot be asked to continue his marital relations with a woman who has breached the marital trust.

Alimony for ‘more qualified’ wife

Wife ‘more qualified’, court rejects alimony plea

TIMES NEWS NETWORK

The Times of India

New Delhi: A trial court has refused interim maintenance to a woman saying she was professionally more qualified than her estranged husband, and had failed to show why she didn’t look for a job. The judge dismissed the woman’s plea after noting that she was a graduate from Delhi University, held a diploma in library science and was once employed as lab technician in the varsity itself while her husband had studied till higher secondary.

“She has not assigned any reason as to why she has not tried to do any other job with the said qualification. It is not her case that she searched for one and could not obtain. Admittedly, there is no issue of the wedlock, and as such, the applicant/wife is free to take up an employment. ...since the applicant herself has failed to disclose the reason for not doing any job in spite of being able bodied and educationally and professionally qualified; and much better qualified than the husband, she has failed to make out an entitlement for any interim maintenance for herself,” additional district judge Sujata Kohli said.

The judge relied upon a judgment of the MP high court while taking the decision. “A spouse who is well qualified to get service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony....” the court said. The couple had moved the court for separation and in the meantime, the woman filed a plea for interim maintenance of Rs 25,000.

Tax on alimony

No tax on lump-sum alimony: Tribunal

Experts Caution Ruling Comes With Riders, Say Single Payment No Way Out

Lubna Kably TNN 2013/06/30

The Times of India

Mumbai: Marriages are made in heaven, but divorces happen on earth. Thus, tax implications are inevitable.

However, in a recent decision, the Delhi Income-tax Appellate Tribunal (ITAT) has held that a lump sum payment received from a former husband, against relinquishment of monthly maintenance, is a capital receipt which is not taxable.

A Delhi-based resident received a lump sum amount of $99,000 from her ex-husband, who was based in the United States, which she did not offer for tax. Based on today’s exchange rate this sum is approximately Rs 60 lakh.

Under Indian tax laws, any sum of money received by an individual without any consideration (without anything in return), in excess of Rs 50,000 in a year, is taxable. However, if the same is received from a relative, such as a spouse, or on certain occasions such as marriage, it is exempt.

The tax officer, in this case, had held that as the divorce had taken place several years ago, the Delhi-based resident was not a ‘relative’ and hence such payment was not exempt but taxable as “income from other sources” in her hands. This approach adopted by the tax officer was rejected at the first level of appeal — Commissioner of Income-tax (Appeals).

The Commissioner (Appeals) held that the amount was paid by way of alimony only because they were husband and wife. Thus the payment received was from a relative (which includes spouse).

Further it cannot be said that the lump sum amount was received without any consideration — it was received against relinquishment by the wife of her right to receive monthly alimony payments (both past arrears and future payments). Such monthly payments were provided for in the divorce agreement.

Hearing an appeal filed by the tax officer, the Delhi ITAT upheld the order of the CIT (Appeals). It observed: “In this case, the taxpayer was to receive monthly alimony which was to be taxable in each year. As such monthly payments were not received they were not offered for tax as income. The lump sum received by the assessee was a consideration for relinquishing all past and future claims.” It was a non-taxable capital receipt not liable to tax, concluded the ITAT.

“Tax on alimony payment cannot be avoided by merely taking a lump sum consideration. Various facts such as the period of time the monthly alimony was not received, action taken for receipt of such alimony, and the fact pattern of the final settlement by way of lump sum payment will determine whether it will be treated as non-taxable,” cautions a civil advocate, attached to the Mumbai high court.

Demand for too much sex

Demand for too much sex is cruel, grounds for divorce: SC

Dhananjay Mahapatra, TNN

From the archives of The Times of India 2007, 2009, Oct 21, 2010, 10.02pm IST

NEW DELHI: Persistent demand for excessive sex causing injury can be ground for seeking divorce, the Supreme Court has ruled.

Dealing with the undefined term "cruelty" under Section 13 of the Hindu Marriage Act, which provides grounds for divorce, a Bench comprising Justices P Sathasivam and B S Chauhan said the onus was on the one seeking divorce to prove with evidence that a particular conduct of the other partner had caused him/her cruelty.

The ruling came on a plea by an aggrieved husband.

While dealing with the whole gamut of what can be called "cruelty", entitling a spouse to move court for divorce, the Bench said even a single act of violence which was of grievous and inexcusable nature could fit the definition.

"Persistence in inordinate sexual demands or malpractices by either spouse can be cruelty if it injures the other spouse," said Justice Sathasivam, who wrote the judgment for the Bench.

However, a few isolated instances of cruelty over a certain period of time would not amount to cruelty as married life should be assessed as a whole, the Bench said while rejecting one Gurbux Singh's appeal seeking divorce on the ground of cruelty.

"Making certain statements on the spur of the moment and expressing displeasure about the behaviour of elders may not be characterised as cruelty. Mere trivial irritation, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty," the Bench clarified.

Having failed to prove cruel behaviour of his wife, Singh tried to impress the apex court to grant him divorce saying the marriage had broken down irretrievably as he and his wife were living separately since 2002 and there was no chance of their reunion.

The Bench said divorce has to be granted strictly under the grounds provided in Section 13 of Hindu Marriage Act though the apex court might have dissolved marriage on account of irretrievable breakdown in one case.

dhananjay.mahapatra@timesgroup.com

Restarting a divorce case after 17 years of separation

From the archives of The Times of India 2010

After 17 years of separation, SC tells man to restart divorce case Dhananjay Mahapatra | TNN

New Delhi: Army officer Deepak Kumar and lawyer Manisha Tyagi never lived happily as husband and wife. Their roller coaster personal life, which went through judicial separation and then divorce, was put in a rather piquant situation by the Supreme Court on Wednesday.

After staying separately for over 17 years and a divorce decree by the Punjab and Haryana HC in August 2006, an SC bench comprising Justices V S Sirpurkar and S S Nijjar set aside the HC order putting the estranged couple back to judicial separation stage. As soon as the judgment was pronounced, Kumar’s counsel Rajender Kumar pleaded that there was nothing left in the marriage and it was a mercy plea from husband for grant of divorce. The bench said, “You can take appropriate steps under law.”

Unable to endure alleged mental cruelty inflicted by his wife, Kumar, a now time-scale lieutenant colonel in the Army, had moved trial court for divorce. Though the trial court rejected his plea, a single judge bench of Punjab and Haryana HC found charges against the wife true and allowed judicial separation.

Tyagi appealed against the judicial separation order before a division bench of the HC, which went a step further and granted divorce. Tyagi’s counsel Kamini Jaiswal pointed out to the SC that on filing an appeal, the wife could not have been worse off, especially when the husband had not filed an appeal against the judicial separation order. Jaiswal stuck to the legal point even as the bench had wanted to know whether there was any room of reconciliation or arriving at a settlement. Kumar had agreed to pay Rs 10 lakh for a mutually agreed divorce.