Divorce: India
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Alimony/ Maintenance
Daughter’s wedding
Abhinav Garg
The Times of India, Nov 30, 2014
HC ORDER - Man to pay Rs 37L for daughter's wedding
Holding the father liable for bearing “reasonable” wedding expenses of his daughter, the Delhi high court has ordered a man to pay Rs 37 lakh to his estranged wife for their daughter's marriage next month.
“If the man can own a bungalow in Sainik Farms, have a major stake in a firm which owns a resort in Manali and own various properties, he can spend a good amount on his daughter's wedding,“ Justice G P Mittal observed in an interim order granting relief to the two women.
The man's wife and her 25-yearold daughter had moved HC filing a suit for maintenance. Through advocate Prabhjit Jauhar, the wife told HC that soon after their wedding in 1982, she was mistreated and had to leave the matrimonial home. Later, the couple's daughter and son also followed suit because they were subjected to cruelty by their father. Jauhar submitted that if the father can give interest-free unsecured loans to the tune of Rs 2.5 crore, the claim of marriage expenses of Rs 66 lakh should not be seen as excessive.
However, Justice Mittal was guided by the term “reasonable expenses“ mentioned in the Dowry Prohibition Act 1961 to limit the expenses to Rs 37 lakh.
The girl's father, through senior lawyer Y P Narula, had offered to contribute Rs 5 lakh, apart from agreeing to take care of the catering.
The court also brushed aside the father's claim that jewellery or gifts given at the time of marriage may amount to dowry, saying that as per the Act itself, presents given by the bride's parents at the time of her marriage without any demand from the other side is permissible provided they are entered in a list maintained in accordance with the Act and not excessive having regard to the financial status of the parties.
The HC order is expected to come as a respite for several similarly situated unmarried girls
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...”
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
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
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.
Madras HC: no alimony for adultress
The Times of India, Aug 17 2015
HC: No alimony if woman divorced over adultery
A woman divorced on the ground of adultery cannot claim maintenance from her ex-husband, the Madras high court has ruled. The judge made the observation while allowing a criminal revision case filed by a government staffer challenging a lower court's order to pay a monthly maintenance of Rs 1,000 to his former wife, whom he divorced in 2011 on the ground of adultery .
“Just as a man has an obligation to maintain his divorced wife, the woman also has an obligation not to have illicit relationship with another man,“ Justice Nagamuthu said. “The divorcee would suffer disqualification from claiming maintenance if she had relationship with another man. She was entitled to get maintenance from the person with whom she had relationship and not from the ex-husband,“ he said.
Alimony for ‘more qualified’ wife
Wife ‘more qualified’, court rejects alimony plea
TIMES NEWS NETWORK
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.
Child’s maintenance if former wife earns
Even if former wife earns, man must provide for child : Bombay HC The Times of India Shibu Thomas,TNN | Oct 27, 2014
Justice M S Sonak upheld a family court’s interim order, directing Pune resident Prakash Mehta to pay Rs 8,000 a month for the rent of a flat where his estranged wife Seema and their child live.
MUMBAI : A man cannot be relieved of his responsibility of contributing to the financial needs of his child merely because his estranged wife is economically sound, the Bombay high court has ruled.
Justice M S Sonak upheld a family court's interim order, directing Pune resident Prakash Mehta to pay Rs 8,000 a month for the rent of a flat where his estranged wife Seema and their child live. Mehta had claimed Seema, an IT engineer, earned over Rs 60,000 a month, while his monthly salary was Rs 35,000.
"The conclusion in all cases cannot be that if a wife can provide for their child, her spouse is altogether relieved of his obligation to contribute to the financial needs of the child," said the judge. The HC also rejected Mehta's contention that the family court could not have passed the order for providing a residence as the main application for maintenance under the Hindu Marriage Act was still not decided. The court said an application, seeking relief of residence under Domestic Violence Act, was maintainable.
"There is no question of awaiting the disposal of the main proceedings and only then, giving an order for providing a residence. If such a strained interpretation is permitted, the very object is likely to be frustrated," the judge said. The court pointed out that Seema bore all the expenses of maintenance, education and medical needs of their minor child, while Mehta did not shell out anything.
"There can be no doubt that the responsibility to provide maintenance and shelter to a minor child is equal for both the parents," the judge added.
Seema had approached the court, seeking maintenance for herself and her child from Mehta. She sought interim relief, claiming Mehta had allowed the leave and licence agreement of their matrimonial flat in Pune to lapse in order to harass her. She was then forced to find a new house and paid a rent of Rs 9,000 per month. Mehta claimed Seema and the child lived in her brother's flat and did not pay rent. The HC, however, disagreed and said Seema's brother was not under any legal obligation to provide her residence gratis.
Financially stable wife can’t claim maintenance: Bombay high court
Shibu Thomas,TNN | Feb 24, 2014
(Names of the couple changed to protect identities)
MUMBAI: Only a wife with no sufficient source of permanent income can claim maintenance from her husband, the Bombay high court has ruled. A division bench of Justice Vijaya Kapse-Tahilramani and Justice P N Deshmukh rejected an application by an Andheri resident, Sheela Sharma (61), who had sought Rs 15,000 as monthly maintenance from her husband, Nitin Sharma, who is based in Australia.
"It is a well-settled law that only a wife who has no sufficient permanent source of income can claim and get maintenance from her husband who has sufficient means," said the judges. The Sharmas have a son and daughter who are married and settled abroad. The couple has been living separately since 2007.
The court pointed out that it had come in evidence that Sheela had invested Rs 50 lakh in fixed deposits and also made investments in mutual funds. She has also invested another Rs 2 lakh that she got from Nitin in a fixed deposit. She resides in a flat that she had bought with Nitin, who said she had exclusive possession of the house. This meant there was no rent to be paid. "It is seen that the wife is getting more than Rs 37,500 per month as interest. She has more than Rs 50 lakh in the bank. In addition, (her) son is providing money for her maintenance and other expenses. No one is dependent," said the judges.
Nitin had moved the court for divorce on the grounds of cruelty, which was dismissed by a family court. Meanwhile, Sheela too moved the court. The family court allowed her plea and granted the couple judicial separation and asked Nitin to shell out Rs 25,000 as monthly maintenance. Nitin challenged the maintenance order and a single bench of the HC set aside the maintenance order. Following this, Sheela challenged the orders and sought Rs 15,000 as maintenance.
Settlement not easy to challenge: HC
The Times of India Jan 02 2016
TIMES NEWS NETWORK
The Delhi high court forced a woman to withdraw her plea challenging a divorce decree as she had already received Rs 5 crore as settlement.
Justice Manmohan, in a re cent order, took a grim view of the fact that despite getting the settlement amount, the woman again turned up in court claiming that the decree had been passed in a fraudulent manner.She challenged the divorce decree granted by a matrimonial court on the ground that the husband initially promised to pay her more than double the amount. The woman also sought to restrain him from marrying a second time in her plea. HC agreed to hear the mat ter but asked the woman to first cough up the Rs 5 crore she had been paid and deposit it with court registry . The court opined that if the woman claims the decree was obtained by fraud, both parties must start on a fresh note. At the next hearing, however, the wife promptly withdrew her case, admitting it was not “maintenable.“
The high court's order came on a contempt petition filed by the estranged husband who complained that even after a court endorsed settlement and payment of a huge alimony , his exwife wants to revive the dispute a year later on the eve of his second marriage.
Appearing for the husband, advocate Prabhjit Jauhar informed the court his client and former wife entered into a settlement approved by a matrimonial court where the wife surrendered all claims for a lump sum of Rs 5 crores. Accusing her of contempt, the husband urged HC to begin proceedings since the woman had breached the terms of the settlement terms and her own undertaking before court.
Justice Manmohan upheld the principle that no person after entering into a settlement before a court can back-track and challenge it on the ground of fraud.
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
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.
Alimony not for mere survival: SC
The Times of India Apr 07 2015
Dhananjay Mahapatra
The Supreme Court ruled that courts must direct a man to pay such alimony to his estranged wife so as to allow her to live life with dignity and not just make ends meet. “Be it clarified that sustenance does not mean and can never allow to mean mere survival. A woman, who is constrained to leave marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband,“ a bench of Justices Dipak Misra and P C Pant said.
Increasing the maintenance amount from Rs 2,000 per month to Rs 4,000 to a retired Army personnel's estranged wife, the bench said at the time of quantifying maintenance under Section 125 of Criminal Procedure Code, the status of the husband has to be taken into consideration. Writing the judgment for the bench, Justice Misra said, “As long as the wife is held entitled to grant of maintenance under Section 125, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar.“
The court said the husband would have to arrange for payment of maintenance to wife even if he had no job.“Sometimes, a plea is advanced by the husband that he does not have the means to pay , for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law,“ the bench said.
“If the husband is healthy , able bodied and is in a position to support himself, he is under legal obligation to support his wife, for wife's right to receive maintenance under Section 125, unless disqualified, is an absolute right,“ it said.
Loss of matrimonial home and the cohabitation with husband are unfortunate developments for a woman, the bench said, adding “at this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort“.
CBI probing 243 ponzi schemes
The Supreme Court said it was actively supervising the CBI probe into 243 cases relating to chit fund scams in West Bengal, Odisha, Assam and Tripura. It declined to monitor investigations into the Odisha cases. CBI's mandate, it said was to unearth the scams, the companies behind them and politicians who aided and abetted the lynchpins of these scams. A bench of Justices T S Thakur and C Nagappan declined petitioner Alok Jena's request to monitor the CBI probe into chit fund scam cases in Odisha after the CBI, through solicitor general Ranjit Kumar, presented a status report of the probe in various states. In West Bengal, the CBI has taken up 146 cases, of which 76 FIRs are related to Saradha group. The state police are investigating 393 FIRs against Saradha group and has filed charge-sheet in 317 cases.
Streedhan
SC ruling of 2015
Sources: The Times of India
1. The Times of India, Nov 22 2015, AmitAnand Choudhary
2. The Times of India, November 22, 2015, Amit Anand Choudhary
Streedhan can be claimed even after separation
Matters temporal & spiritual before Supreme Court
A woman has an inalienable right to ‘streedhan’ and can claim it even after her separation from her husband, the Supreme Court has said in a ruling that makes it clear that denial of her claims can amount to domestic violence, making her husband and in-laws liable to face criminal prosecution. As per Hindu Law, ‘streedhan’ refers to all valuables — movable and immovable property and gifts — a woman receives in her lifetime, prior to and after marriage. This is quite different from dowry, the demand of which by the husband or his family is illegal.
A bench of Justices Dipak Misra and Prafulla C Pant quashed the order of a trial court and Tripura high court which had held that a woman cannot claim her ‘streedhan’ after separation and ruled out criminal proceedings against the husband and in-laws for not handing over the properties. The Supreme Court has pulled up a trial court and the Tripura high court for dismissing the plea of a woman for `streedhan' on the ground that she lost the right over it after judicial separation from her husband. The court said the Protection of Women from Domestic Violence Act was meant to provide an effective protection to a woman and the court should adopt a sensitive approach towards such complaints.
The bench clarified that separation under court orders is different from divorce and the couple remains as husband and wife, though living separately . It said under judicial separation, a couple can keep their status as wife and husband till their lifetime and a wife is entitled to invoke the Act during that period if her rights are violated. “It is quite clear that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped,“ the bench said.
“Thus the findings recorded by the courts and concurred by HC that the parties having been judicially separated, the wife has ceased to be an aggrieved person is wholly unsustainable,“ it said.
In this case, the woman had got married in 2005. Five years later, her husband sought and the court passed the order in his favour. Alleging that her husband and inlaws were not handing over jewellery and other assets gifted to her by family and friends, she approached the trial court which dismissed her plea. The HC also upheld the order.
Quashing the order of trial court and HC, the apex court said the woman has inalienable right over streedhan and neither the husband nor any other family members can have any right over it.
“We are of the considered opinion that as long as the status of the aggrieved person remains and streedhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the Act. We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage,“ it said.
“A decree or an order for judicial separation permits the parties to live apart. Mutual rights and obligations arising out of a marriage are suspended. The decree however, does not sever or dissolve the marriage,“ the bench said and directed the trial court hear her plea on merit.
Cruelty: definition
False criminal case filed by spouse
The Times of India, August 1, 2016
HC: False criminal case filed by wife grounds for seeking divorce
The Punjab and Haryana high court has held that a husband is entitled to seek divorce on the grounds of “mental cruelty“ when the wife has filed a false criminal case against him and his family members in which they end up being acquitted. HC passed this order while allowing a petition filed by Hisar-based Army officer seeking divorce from his wife.
Custody of children
Virtual access no solution
The Times of India, Aug 01 2016
Swati Deshpande
Court slams non-custodial parent's virtual access to kid in custody row
Giving a noncustodial parent only virtual access to a child during divorce battles is not a longterm solution and would become an empty ritual, a Pune family court said when a woman, who went to Switzerland on a work assignment in 2015, wanted to extend her stay there with her preschooler. Last week, the judge allowed the techie to extend her stay abroad till the end of the year, provided she sends her daughter to Pune for a week or makes arrangements for her husband to visit Switzerland for a week and have access to their child. “For any parent, having only virtual access to their children cannot be a long-term solution...Without proper justification (it) will make such vir tual access an empty ritual.It will not benefit either the non-custodian parent or the child,“ judge Swati Chauhan said, adding that when done without proper justification, such virtual access will become an empty ritual. The order is significant at a time of more divorces occuring where one parent works in another state or abroad.
Such divorce cases deprive the other parent of time with the child and increasing chances of “parent alienation syndrome. The couple has been fighting a divorce battle since 2014. In June 2015, the wife sought permission to go to Switzerland for nine months for an assignment in the “interest of her career“. The child was then less than four. Her husband first apprehended that she would alienate the child from him. The father-child bond may be jeopardised, he said. After counselling, they agreed she could stay abroad till July 2016 during which he would get access to the child via video-con ferencing thrice a week and on Sundays.
On June 24, 2016, when she sought an extension till December 31, the court said, “Her request is not bona fide and fair... (she had) not bothered to explain whether her request is to complete the original assignment or begin a new one whose end date is January 10, 2017, as documents submitted later reveal“.
The husband pointed out that she had lived abroad for a year on work, leaving the child, then one year old, with her parents.The court agreed that the “father-daughter bond should not be allowed to get diluted by separation“.
Balancing the wife's plea to enrich her career and earn money and the husband's right to spend time with his child is an “unpleasant situation said the court.
Childhood divorce (10-14 years)
Amarjeet Singh, Census: Over 12,000 kids are divorced, The Times of India (Delhi) Sep 15 2016
Nearly 12,105 children aged between 10 and 14 years were identified as divorcees in Census 2011, 53.67% or 6,497 of them girls. However, the Office of the Registrar General and Census Commissioner of India fails to explain the legal basis of categorising underage individuals as `divorcees' when child marriage itself is unlawful.
The data stands testimony to the fact that child marriage remains fairly common.
As regards the overall number of minor divorces, that is people whose marriage ended before adulthood, Maharashtra accounts for the highest share of all states (1,984), followed by Uttar Pradesh (1,875), Gujarat (1,638), West Bengal (1,286) and Bihar (801). Rajasthan, considered to be the child marriage capital of the country, only has 366 such minors.
A K Saxena, joint director, Directorate of Census (Madhya Pradesh), said, “These are exact field data from our enumerators who go house-tohouse to collect and record information as given to them.“
Custody of children
Custody of minor children to be with mother
Custody of minor shall be with mother, rules SC
Amit Choudhary The Times of India Mar 04 2015
In a custody battle between estranged parents, a minor child, under five years , shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases the child should not be treated as a “chattel“. The court said that under Hindu Minority and Guardianship (HMG) Act, Section 6(a), a father can be guardian of the property of the minor child but not of his person if the child is less than five years old.
“There can be no cavil that when a court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons,“ a bench of Justices Vikramajit Sen and C Nagappan said.
The apex court quashed the Bombay high court's or der which granted custody of a two-year-old child to father on the ground that the mother had not established her suitability to be granted interim custody of the infant.
“The HMG Act postulates that the custody of an infant or a tender aged child should be given to hisher mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardized if the custody is retained by the mother,“ it said.
“The Act carves out the exception of interim custody , in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age,“ it said.
The bench added, “The Act immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother.“ It further said, “The use of the word `ordinarily' cannot be over-emphasized. It ordains a presumption, albeit a rebuttable one, in favour of the mother.“
Foreign courts' decisions
Ex parte divorce decree invalid: HC
‘Irretrievable Marriage Breakdown Not Recognized Under Act’
Smriti Singh TNN 25/04/2013
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
Grounds for divorce
Character assassination
`Character assassination ground for divorce' Oct 08 2016 : PTI
A false character assassination charge by a spouse would be “matrimonial cruelty“ entitling the other to seek divorce, the Delhi high court said on Friday .
“It is now beyond cavil that if a false character assassination allegation is made by either spouse, it would invariably constitute matrimonial cruelty to entitle the other spouse to seek divorce,“ a bench of justices Pradeep Nandrajog and Pratibha Rani said.
The court observed this while dismissing a woman's plea challenging a trial court order allowing her husband's petition for divorce on the ground of cruelty .
Concurring with the trial court findings, the high court said the reasons recorded by the Family Court while granting divorce was fully borne out from the material available on record and “cannot be faulted with“.
“Therefore, the decree of divorce granted by the Family Court has to be upheld,“ the bench added.
The man, who is a teacher in a school here, had sought divorce claiming he was a nonsmoker and a teetotaler, but was defamed by his wife as an alcoholic and a womaniser.
“This adversely affected his reputation in the family so much so that he even thought of committing suicide,“ the high court noted in its verdict.
The woman, however, had refuted his claim and said she was harassed by demand for dowry . Brushing aside the woman's contention, the court observed that “the disgusting accusations made by the wife against the husband of being in illicit relationship, referring him as a drunkard, are serious in nature assassinating his character and harming his reputation as a teacher.
“She has failed to prove any of the above but yet resisting the divorce which, if accepted, would make life of the two even more complex and unbearab le.“ it added.
Trying to separate spouse from in-laws
PTI, `Divorce valid if wife tries to separate spouse from in-laws' Oct 09 2016 : The Times of India
In a Hindu society , it is a “pious obligation“ of the son to maintain parents and the persistent effort of the wife to constrain the husband to be separated from his family constitutes an act of `cruelty' enabling him to get divorce, the Supreme Court has said.
A bench of Justices Anil R Dave and L Nageshwara Rao made the observations while confirming the decree of divorce sought by a Kar nataka-based man.
The order was passed while setting aside the Karnataka high court judgment which had dismissed the decree of divorce granted by a Bangalore family court in 2001.
“In a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an at tempt to deviate from the normal custom of the society , she must have some justifiable reason for that and, in this case, we do not find any justifiable reason, except monetary consideration of the wife.
“In our opinion, normally , no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the wife to constrain the husband to be separated from the family would be torturous for husband and in our opinion, the trial court was right when it came to the conclusion that this constitutes an act of `cruelty', the HC said.
It further said, “It is not a common practice or desirable culture for a Hindu son in India to get separated from his parents on getting married at the instance of the wife, especially when the son is the only earning member in the family .A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents.
Cruelty: definition
False charges of infidelity equal cruelty
`False charges of infidelity equal cruelty'
Rebecca Samervel The Times of India Oct 25 2014 Mumbai:
Observing that making false accusations of infidelity and humiliating a person on the basis of this amounts to cruelty, a family court has granted divorce to a deputy municipal commissioner, whose wife falsely accused him of having an affair with a colleague’s wife.
The alleged paramour’s husband testified in the petitioner’s favour and said that the woman had damaged his wife’s reputation too.
The court said that the estranged wife’s behavior— quarreling, humiliating the man with his alleged affair — had caused him pain and anguish. “These and various other allegations, coupled with the fact that there is no challenge to the petitioner’s evidence that they have had no sexual intercourse from 2001 until 2009... are sufficiently grave and weighty instances of cruelty committed by the wife towards the petitioner husband,” the judge said.
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
Abusive in-laws
Apr 26 2015
Abusing in-laws a ground for divorce, says SC
Amit Anand Choudhary
Abusing in-laws and not allowing them to reside in the matrimonial home by a woman amounts to cruelty to her spouse, ground enough for grant of divorce, the Supreme Court has ruled while allowing an NRI's plea for legal separation from his wife. A bench of Justices Vikaramajit Sen and A M Sapre said such incidents could not be termed as “wear and tear“ of family life as held by Madras High Court which had said that a couple must be prepared to face such situations in matrimonial relationship.
The NRI had filed a divorce petition alleging that his wife was abusive to his family members and did not allow his parents and siblings to stay in his house when they visited the US.
Referring to an incident, the husband told the court that his wife had once locked him and his sister out of the house and abused them saying they belonged to a `prostitute family'. She refused to allow her sister-in-law to enter the house and even lodged a police complaint against her husband.
Taking into accounts all the evidence produced by the husband including abusive voicemails and emails he received from wife, while she was in India, the bench said it was a clear case of mental cruelty and husband was entitled for divorce.
“If a spouse abuses the other as being born from a prostitute, this cannot be termed as `wear and tear' of family life. Summoning police on false or flimsy grounds cannot also be similarly viewed. Making it impossible for any close relatives to visit or reside in the matrimonial home would also indubitably result in cruelty to the spouse,“ the bench said.
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
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.
Mutual consent
SC on Mutual consent divorces
From the archives of The Times of India 2010
HC verdict may speed up divorce by mutual consent
Swati Deshpade | TNN
Mumbai: A recent decision of the Bombay high court will now help speed up divorce for couples wishing 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 on grounds of irretrievable breakdown of marriage, cannot be insisted upon by the family court if the couple are separate for a year and their divorce plea has already 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.
A couple married under the Hindu Marriage Act in May 2005 had lived for a year before separating. The husband then filed for divorce a year later on ground of cruelty by his wife. During the trial, both traded charges of cruelty and harassment against each other. But soon the couple agreed to bury the hatchet and withdrew their allegations to settle the dispute. In December 2009, they filed consent terms for a mutual divorce plea and sought a waiver of the six-month period, stipulated under law to enable the couple to reconsider their decision. But the family court judge, who presides over the seventh court, rejected their request for a waiver.
If couple wants divorce, courts cannot ask for reasons: Madras HC
The Times of India, Aug 11 2016
If a married couple wants divorce by mutual consent, it is not a court's business to deny them judicial separation by insisting on knowing the reason for their decision, the Madras high court has said.
Noting that a court could not act like a fact-finding authority , a division of Justice K K Sasidharan and Justice N Gokuldas said: “In case the marriage is a failure and the parties wanted to put an end to the marital bond, the court should respect the sentiments and grant divorce. It is not the intention of the legislature to deny divorce in spite of the parties taking a conscious decision to part ways.“
Rapping a family court in Tirunelveli for having dismissed a joint divorce plea filed by a couple that had been living separately for more than a year, the judges said: “Once it is convinced that it would not be possible for the parties to live together and that they have opted to dissolve the marriage peacefully the endeavour of the court must be to grant a decree of divorce rather than compelling them to live separately even thereafter.“
In the current case, the couple was married in May 2013, but started living separately from July 2014 onwards. In 2015, they filed a jo int petition for dissolution of the marriage, but it was rejected by the court on the ground that they had not mentioned the reasons for their separation.
The bench, disapproving of the order and setting it aside, said that under Section 13-B(2) of the Hindu Marriage Act, a court has to satisfy as to whether the marriage has been solemnised and that the averments in the petition are true. “In case the parties have been living separately for one year before the initiation of the joint petition for divorce and there is no scope for reunion, normally , the court has no other option than to grant the degree of divorce,“ the judges said.
The only reason assigned by the family court to dismiss the petition is that the parties have not assigned any reason for not being able to live together, the bench said, adding: “Whatever may be the reason, psychological or otherwise, it stands established that the parties have not been able to live together, and have been living separately from July 18, 2014 onwards. The parties have mutually agreed that their marriage should be dissolved. This is all Section 13-B of the Act requires, and when that ingredient stands satisfied, it is not possible to throw out the joint petition against the wishes of the parties.“
statistics of divorce, widowhood
Religion-wise likelihood of divorce, 2016
The Times of India, Aug 24 2016
Subodh Varma
Divorce and separation rates are higher among Christians and Budd hists, and lowest among Jains, according to freshly released Census 2011 data. Although separation rates are higher for Hindus than Muslims, divorce is more prevalant among the latter. The share of those who have lost a spouse to death is the highest among Buddhists, followed by Christians. Widowhood rates are much higher among Hindus and Sikhs than Muslims. A complex web of religious and social factors is responsible for these trends, which are similar to those discovered in the previous Census. Although divorce is legally allowed for Hindus, it may still carry social stigma. This could be the reason why the separation rate for Hindus was 5.5 per thousand married people, while the divorce rate was pegged at just 1.8 per thousand.Separation includes wives abandoned by husbands.
Among Muslims, it seems the triple talaq provision pushed up the share of female divorcees to five per thousand, against 2-3 per thousand for Hindus, Sikhs and Jains. However, Christians and Buddhists have similar rates of women divorcees. The rate of widowhood is directly linked to the wellknown demographic fact that women live longer than men.This results in two to three times the number of widows compared to widowers across all communities. Another factor at work is life expectancy.Muslims have the lowest average life expectancy of all communities and this results in the least number of widowed people, at about 73 per thou sand married persons. Among Hindus and Sikhs, the share is about 88 per thousand, while it is higher for Christians (97) and Buddhists (100).
An interesting dimension of the marital status details released by the Census relates to never-married persons across different communities. Among those who have attained the marriageable age, that is, 21 years for men and 18 years for women, Hindus have the lowest share, at 16% unmarried men and just 10% unmarried women.This indicates a very high drive towards early marriage, with many tying the knot before attaining the legal marriage age.
Christians have the highest rate of unmarried persons of marriageable age, at 21% among men and 18% among women.
But across all communities, a smaller share of women are still unmarried after the legal age than men, indicating the relentless pressure on women to get married.
No divorce for man with terminally ill wife: SC
The Times of India, Dec 04 2015
Amitanand Choudhary
SC rejects divorce plea of man whose wife is terminally ill
A husband is duty-bound to stand by his wife in difficult times, take care of her and refrain from seeking divorce when she is terminally ill and fighting for her life, the Supreme Court has said. A bench of Justices M Y Eqbal and C Nagappan said this while turning down the divorce plea of a man even though his wife had consented for separation after the court came to know that she is suffering from cancer and needs immediate treatment.
The court suspected the woman was being pressured into accepting a settlement because of her need for money for treatment and asked the husband to immediately make funds available. The court said that for a Hindu wife, her husband is god. The ruling by an SC bench of Justices M Y Eqbal and C Nagappan said a Hindu wife devotes her life in her husband's selfless service and this is why marriage law enjoins a corresponding duty on the husband to look after her comforts.
“Hindu marriage is a sa cred and a holy union of husband and wife by virtue of which the wife is transplanted in the household of her husband and takes a new birth. It is a combination of bone-to-bone and flesh-toflesh. A wife not only shares the life and love, but the joys and sorrows, the troubles and tribulation of her husband and becomes an integral part of her husband's life,“ it said.
The bench asked the husband to pay Rs 5 lakh for her treatment and said the divorce plea would be considered only after she gets well.Applying the principle of Contract Law, the bench said the wife might have given consent for divorce under undue influence as she needed money for treatment and the husband had agreed to pay Rs 12.5 lakh for settlement.
“It is evident that the wife needs money for the treatment of breast cancer. Hence, it cannot be ruled out that in order to save her life by getting money , she agreed for a settlement of dissolution of marriage,“ the bench said.
Residing with husband till divorce
‘Until divorce, wife can stay with hubby’
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.
Restarting a divorce case after very long 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.
Sexual incompatibility
Psychological, medical examination can be demanded
Swati Deshpande The Times of India, Sep 10, 2016
Man can seek wife’s test to show they never had sex: Bombay HC
Can a family court direct a wife to be medically examined to enable the husband to prove his claim of non-consummation of marriage? Certainly, said the Bombay high court as it upheld an order passed this July by the Mumbai family court in a divorce petition filed in 2011 on grounds of non-consummation.
Justice K K Tated of the Bombay HC recently rejected a challenge by a woman against an order passed by the family court which had directed her to "undergo a physical and psychological examination medical examination to be conducted by the medical board of Sir J J Hospital, Mumbai". The family court judge had called for such an examination on a plea made by the husband in July after she deposed during the divorce trial that she had consummated the marriage with him in 2011 multiple times immediately after their marriage. His plea for divorce, filed five years ago, was on the grounds that she had not, and was "incapable of". The couple married in December 2010. She was 33 years old and he, 38. It was a second marriage for both.
The family court had directed the medical board to "report whether she is impotent (sic) as alleged". Aggrieved at the order, which had even set a date in August for her medical examination, the wife moved the HC and her lawyer Mandar Limaye argued that the husband had made his plea, impermissibly, at a belated stage, and that the trial was almost over and only arguments remained to be heard. Besides, he submitted a medical certificate by a private doctor who she had visited. The certificate was adequate, the wife argued. Her lawyer pointed to a Supreme Court ruling which said family courts cannot order "roving enquiries" without specific grounds being made out by the other side.
The HC accepted the husband's counsel Ramesh Lalwani's submission that the plea was not belated as it was made within three months of the wife's deposition. It noted that "to prove non-consummation of marriage, medical examination was required". It also noted that the wife had in her cross-examination before the family court said she was "ready to undergo any kind of physical examination". Relying on the same SC ruling, Lalwani argued that the family court has powers to direct a party to undergo a medical test and such an order is no violation of personal liberty under right to life. If, despite the order, the husband or wife, against whom such order is made, refuses to submit to a test, the court is entitled to draw an adverse inference, the SC had held. The HC thus found no merit in the wife's plea.
Surname of ex-husband: Using it after divorce
From the archives of The Times of India 2010
Divorced woman can’t use ex’s name’
Swati Deshpande | TNN
Mumbai: ‘‘What’s in a name...’’ The famous Shakespearean line from Romeo and Juliet popped up during an acrimonious divorce proceedings on Wednesday. ‘‘A lot,’’ said an aggrieved man, ‘‘especially when my ex-wife is misusing it’’. The Bombay high court concurred and in a rare order that might make divorced men smile, directed the divorced woman to stop using her former husband’s name and surname.
The HC further clarified: ‘‘ex-wife cannot use the husband’s name anywhere, including in her bank account’’. The landmark judgment was passed by Justice Roshan Dalvi as she dismissed a petition filed by a woman challenging an interim order of the family court in Bandra.
The Ex Files
Granted divorce in 2006, but woman uses surname of ex-husband, a police inspector Man alleges ex-wife misuses his name after getting into arguments and fights in public HC says woman can’t use ex-husband’s name or surname, including in bank account
‘People may be misled’
The Bombay high court on Wednesday upheld a lower court ruling restraining a divorced woman from using her husband’s name and surname. R R Vachha, principal judge of the family court in Mumbai, had in September last year adjudicated in favour of the ex-husband as the marriage had ended four years ago.
‘‘By using the exhusband’s name or surname, there is always a possibility of people being misled that she is still the wife, when in fact she is not,’’ said Vachha. The HC upheld the family court order and said it need not be interfered with but should be given effect to ‘‘for all purposes’’. The battle over names between the couple arose a year after the family court granted them divorce in February 2006 and the HC finalized it the same year. TNN
Which Act will apply? Same act as married under
Divorce only under Hindu Act if married under it: HC
Shibu Thomas Mumbai:
The Times of India Sep 01 2014
Once a couple marries under the Hindu Marriage Act, they can only get a divorce under the same law even if they are no longer Indian citizens, the Bombay high court has held.
Hearing a petition filed by a man against his wife, both British nationals of Indian origin and doctors, a division bench of Justices Vijaya Kapse Tahilramani and V L Achliya recently upheld a family court order granting interim custody of the couple's 3.5year-old daughter to the woman. The daughter too is a UK citizen. “The Court at London is not the competent court of jurisdiction to decide the issue of dissolution of marriage between two Hindus married in India as per the Hindu Vedic rites,“ observed the judges.
“Once provisions of Hindu Marriage Act apply , they would continue to apply as long as the marriage exists and even for the marriage's dissolution. The Hindu marriage gives rise to a bundle of rights and obligations between the parties to the marriage and their progeny ,“ said the HC.
