Friday, April 15, 2016

Adulterous wife cannot claim Maintenance or Alimony in India

The Indian Courts  declared  that a divorced wife is living in ‘illicit relationship’ with man other than her former husband is disqualified from claiming maintenance from her former husband. The decree obtained by the husband for divorce on proving the adulterous life of the wife cannot give a license to her to continue to live in illicit relationship and to get her right to claim maintenance revived.
  The court also distinguished the facts of this with earlier decisions of Supreme Court which had held that Section 125(4) of the Code of Criminal procedure does not apply to divorced wife. so far as adultery is concerned, the above Judgment cannot be made applicable, because even after the decree of divorce, the divorced wife carries the obligation not to live in relationship with any other man.
When a  Court granted a decree for divorce dissolving the marriage, precisely on the ground that the wife was living in adultery. During the pendency of the said matrimonial dispute before the Family Court, wife filed petition claiming maintenance. As per Section 4 of Section 125 of the Code, “No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
The Author K.P.Satish Kumar M.L. is the leading divorce Attorney in Chennai

To Contact Team Daniel & Daniel @ 9884883318

Divorce can easily obtain on the ground of Religious Conversion

Marriage and religion are very closely intertwined in the Indian society. Marriages are primarily based on the religion one follows. Since parents tend to arrange marriages for their children, they will scout for a match in their own community following the same religion. Conversion after marriage can be a tricky thing for the partner who has not been taken into confidence before the change happens. According to The Hindu Marriage Act, 1955, if a person ceases to be a Hindu by conversion to another religion, he or she will be eligible to apply for divorce based on the ground of conversion. 

Conversion of the spouse to other religion was only for the purpose of circumventing the provision of Section 494 of Indian Penal Code, 1860. Conversion to Islam by a Hindu spouse does not per se lead to dissolution of the marriage. It only gives a right to the other spouse to file a petition under Hindu Marriage Act for divorce. Under the pristine Hindu Law as well, conversion did not operate per se as a dissolution of marriage. A Hindu spouse who ceased to be a Hindu by conversion to another religion does not acquire any right under the Hindu Marriage Act. On the other hand, he or she exposes himself or herself to a claim for divorce by the other spouse on the ground of such conversion. The spouse who remains a Hindu gets a right under the Hindu Marriage Act to seek dissolution of the marriage with the spouse who since the marriage ceased to be a Hindu by conversion to another religion.
The conditions before the Hindu marriage Act when a Hindu wife became convert to the Muslim faith and then married a Mohammedan, it was held that her earlier marriage with a Hindu husband was not dissolved by her conversion. She was charged and convicted of bigamy under S.494 of Indian Penal Code, 1860 prior to the Hindu Marriage Act.
After the Hindu Marriage Act if a marriage solemnised, can only be dissolved by a decree of divorce on any of the grounds enumerated in the Act. One of the grounds for divorce is that “the other party has ceased to be a Hindu by conversion to another religion”. 

The Author K.P.Satish Kumar M.L. is the leading Divorce lawyer in Chennai, Tamilnadu.

Talk to the Team Daniel & Daniel for your matrimonial Problems @ 9884883318.

Can adultery be condoned by Indian Husbands or Wife

Indian courts have held that adultery can be condoned by the other spouse if he/she cohabits with the adulterer even after the knowledge of adultery. The idea behind this is that adultery is considered as a repulsive matrimonial offence and even after the knowledge of the other spouse committing adultery, if the non-adulterous spouse continues cohabitation, it is considered as a condonation of the act of adultery.

The Supreme Court of India in N. G. Dastane vs S. Dastane held that condonation means forgiveness of the matrimonial offense and restoration of spouses to the same position as he or she occupied before the matrimonial offense was committed. Hence, condonation implies both forgiveness and restoration, that is forgiveness by the non-offending spouse and restoration or mending of ways of the offending spouse. If the offending spouse does not mend his or her ways even after commitment of mending ways, it does not constitute condonation of matrimonial offense by the non-offending spouse
Author K.P.Satish Kumar is one of the Top Divorce Lawyer in Chennai.

To Contact Team Daniel & Daniel @ 9884883318

How to prove adultery in India

In a case, the Indian courts had held that ‘The Court usually infers adultery from the fact that the respondent shared a bed or bedroom for the night with a person of opposite sex other than the petitioner or from the fact that the respondent had been carrying on an association with a person of the opposite sex other than the petitioner and there is evidence of illicit affection or undue familiarity between them coupled with an opportunity for them to have committed adultery.’ Therefore we can understand from the above, to prove adultery, the petitioner has to prove that his/her spouse

a. Voluntarily shared a private moment with a person of the opposite sex such as a bedroom, an apartment etc…

b. Has an illicit affection or undue familiarity with the person of the opposite sex. This implies acts of the spouse which are generally forbidden by law, rules or customs of the society and which tend to generate suspicion in the mind of a person

c. The spouse and the person of opposite sex should have an opportunity to commit adultery. For example, if the accused spouse and the other person are in a room alone for a few moments, the 3rd condition is not satisfied as there is no opportunity for them to commit adultery.

d. All the above 3 conditions viz. voluntarily sharing of a private moment, illicit affection/undue familiarity and opportunity to commit adultery should exist at the same time when the said act of adultery is alleged to be performed. This is required so that the conditions of preponderance of probability is met.

As mentioned above direct evidence of adultery is not available, circumstantial evidence is required to be produced in courts. It is to be noted that the circumstances should be such that it should lead to a necessary conclusion that adultery was committed. This can be proved by preponderance of probability method enumerated above.

Adultery can also be proved by

a. evidence of non-access and birth of children
b. contracting venereal disease
c. confessions and admissions

Hence, if the wife delivers a baby or conceives a child, provided the husband does not have access to the wife during the time she was expected to conceive the foetus, is a proof of adultery by the wife.

Similarly, if either spouse contracts a venereal disease, it can be argued that such a disease is spread due to sexual intercourse, which the spouse may have had with another partner.

Further, any confession and admission by the adulterer is also considered as satisfactory proof of commission of adultery.

Author Advocate K.P.Satish Kumar M.L. is the leading family court lawyer in Chennai

Talk to the Team Daniel & Daniel @ 9884883318

What is Adultery in India

Adultery may be defined as a voluntary sexual intercourse by a married person with a partner other than his/her spouse. Therefore, the definition of adultery brings out a few ingredients, which are:

a. It is a voluntary act of the parties. A forceful act cannot be termed as adultery

b. Adultery can be indulged into only by a married person. A sexual intercourse by an unmarried person cannot be termed as adultery

c. The sexual intercourse should be with a person other than the adulterer’s spouse

Therefore, all the above 3 ingredients are important for an act to be termed as adultery.

Adultery  is a ground for divorce in the Indian Marriage Laws. The act of adultery is not a ground for divorce for the moral turpitude involved in it but for voluntary surrender to another person of the reproductive organs of the guilty person. Hence, adultery is actually an offense against the spouse in a marital relationship and not an offense of moral turpitude.

A question which comes up during discussions with married people, whose spouses have indulged in adultery, is a question of how to prove it during a divorce proceedings. As a divorce proceeding is civil in nature, the proof need not be as strict as in a criminal case and therefore proof beyond reasonable doubt is not required.

Adultery can very rarely, if ever, be proved by the direct evidence of witnesses who saw the parties in flagrante delicto and witnessed the act. In most cases, the evidence must be circumstantial in character and must depend upon the situation spoken to in regard to which the act is alleged, and the probabilities relating to that situation. Therefore, a direct evidence is not required to prove adultery, in fact direct evidence, if produced in the court, could be negative. The reason is that adultery is a secret act and it is highly improbable that there could be a witness to such a secret act. Only proof of preponderance of probabilities is required to prove adultery. In common parlance this means that the proposition is most likely to be true in a given situation. If the probability is more than 50% that the given proposition being true, the test of preponderance of probability is met and the proposition is considered to be true. A single act of sexual inter-course is not adultery. 

The Author Advocate K.P.Satish Kumar M.L. is the Madras High Court Advocate and a leading family court advocate in Chennai.

Talk to the Daniel & Daniel Helpline:- 9884883318 

Thursday, April 14, 2016

Guidelines to fix interim maintenance to Indian Wife.

The section 24 of the Hindu Marriage Act provides Hindu wife to get interim maintenance when the divorce or other family court proceedings are pending. The act and the Indian courts has fixed certain criteria to calculate and assess the maintenance amount to be paid by the Husband to wife under S.24 of Hindu Marriage Act.

The Hindu marriage Act says that both the income of the wife and husband should be assessed before fixing the interim maintenance. Without determining the husbands income the court cannot fix the maintenance amount to the wife. Section 24 of the Hindu Marriage Act also provides maintenance to the husband from the wife.

On considering the income tax returns to fix the husbands income the court in VD Mehta V. KV Mehta states that the income tax returns do not reflects true position of income of a party for several reason, and cannot be taken as a sole guide for income of the party in maintenance proceedings.

If wife is taking the support of father and brother then also it is not considered in assessing the quantum of maintenance to be awarded by the court

cost of litigation

The cost of litigation shall also include what is spent by the applicant for travelling a distance from place of her residence to the court and if woman travels a long journey and require assistance than husband would required to pay the expenses for both the persons.

Maintenance of the Children

If Children are under the protection of the wife, the court will be justified in taking that circumstances into account in awarding maintenance to the wife. The Supreme court case in Jasbit Kaur sehgal V. District Judge Dehradun & Ors has held that no doubt section 24 of HMA talks about maintenance to wife during the pend ency of proceedings but this section cannot be read isolation and cannot be restricted meaning to hold that it is maintenance to the wife alone.

Husband Refused  to pay maintenance

If the husband refuses to pay the maintenance amount then the execution of the order of maintenance is not only one remedy the wife can obtain, but stay on proceedings if initiated by the husband can also be obtained from the court.

Quantum of Maintenance

On fixing the Quantum of maintenance it should be determined from an estimate of monthly income allowing for uncertainties, total number of dependents including wife and then fixing share of respondent. The wife cannot claim the maintenance amount beyond reasonable amount.

Article by Chennai Leading Lawyer Mr.K.P.Satish Kumar M.L.

Talk to the Leading Divorce Lawyer in Chennai @ 9884883318

Divorce grounds for Cruelty before Chennai Family Court

The Behavior which causes physical or mental harm to the spouse which is difficult to tolerate the other person beyond their patient level and expectations is yard stick to measure the grounds for cruelty.  

Mostly cruelty happens within four walls and it is hard to prove due to lack of evidence. So in this circumstances the genuine sufferer will get injustice.

The Indian courts has categorized cruelty as follows:-  

1. Act of the wife not allowing her husband to live in matrimonial home constitutes both mental and physical cruelty.

2. Where the husband remained unemployed during his stay with his wife and started spending money on liquor indiscriminately, used to come home late at night, gave physical beatings as well as mentally tortured the wife and also demanded share in his wife’s flat.

3. Threatening the husband that she would commit suicide, persuaded husband to leave his parents, filed false case under section 498A of the IPC and also dowry case against husband and his family members.    

4. Conduct of the husband of continues abusing and ugly and foul language and also alleging the wife of having an extra-marital relationship without any good reason will make the relation between the parties a soured relation and as such the parties cannot be expected to live together.

5. Verbal abuses and insults by using foul and abusive language, disturbing mental peace and every conduct which causes a mental tension as to affect the health or likely to affect the health of the other spouse will be considered as cruelty.

6. A spouse staying away can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing false complaints containing indecent allegations or by initiating number of judicial proceedings making the others spouse’s life miserable.

7. Culture, human value, economic and social conditions will be an important factor in deciding the allegations made in the cruelty.

8. Lack of mutual trust, confidence, faith and having doubt on each other whenever the other spouse fails to answer the call and making remarks on her character will amount to cruelty, rupturing the matrimonial relation and the other spouse cannot be expected to stay in that environment.

9. Where the husband is lethargic, does  not work, is parasitical, selfish or callous provides no money for the household or refuses to undertake payment to meet the household expenses, the wife cannot be expected to stay with the husband.

10. Spouses not behaving in a respectful and cordial manner with the parents of each other would be considered as cruelty.

11. Constant insults, abuses and accusations of adulterous character which make the married life impossible to be endured, constitute mental cruelty of a kind worse than physical violence.     

Above mentioned are just the glimpse of the cases in which the Indian Courts have held the have the cruelty being committed by one spouse towards to the other and the courts cannot expect the other spouse to stay in that house wherein he/she has lost their most cherished fundamental right of life with respect and dignity. The Idea of bringing the cruelty as a ground for divorce is to maintain the self respect and dignity of the spouses living under the same roof and who have decided to stay together for their life in all good and bad times.

Last but not the least is that whenever the spouses comes before the court of law to file their cases with the weak evidence or lack of evidence, the cases end up in dismissal and harassment, but after the amendment of the Information Act, 2009 any spouse can keep a audio or video recording, messages etc. to be used in the court of law to ensure the spouse who committed the cruelty.

Article by Advocate Mrs.Bobby Portia Alex ( Leading Lady Lawyer in Chennai)

Those who are affected by cruelty can Talk to the Top Lady Divorce Lawyer in Chennai @ 9551716256

Mutual Consent Divorce Procedure before Chennai Family Court

“A happy marriage is a harbour in the tempest of life, an unhappy marriage is a tempest in the harbour of life.”

To end a unhappy married life there is two options to get divorce in India. (1) Divorce by Mutual Consent and (2) Contested Divorce.

In Chennai contested Divorce consume more time than divorce by mutual consent. Mutual Consent divorce will be filed before Chennai family court after one year of marriage only. And both spouses should be separately living for more than one year. Other wise a spouse cannot file the mutual consent divorce before the family court.

Since the judicial system is fraught with delays and other systemic problems, a contested divorce can easily take you years in the Court.

A divorce by mutual consent on the other hand, is much more pragmatic. It is based on the idea that when two persons agree to get into a relationship out of their free consent, they should have the liberty to end it as well when it turns sour.

Things to consider before filing Mutual Consent Divorce before Chennai Family Court:-

i) A separation of one year between the husband and wife. That they should not live together after the date of separation.

ii) They should decide the maintenance for the wife and children. They should clear about the articles, jewels and other things which was exchanged before applying the divorce.

Documents required to file Mutual Consent Divorce:

The following documents are necessary to file Mutual Consent Divorce before the Chennai Family Court. They are:-
(1) Address Proof of the Husband:- Such as Aadhar Card, Driving License, Ration Card, Voter Identity Card, Bank Pass Book, Postal Id Card, Identity cards issued by government institutions.
(2) Address Proof of the Wife:- Such as Aadhar Card, Driving License, Ration Card, Voter Identify Card, Bank Pass Book, Postal Id Card, Identify cards issued by government institutions
(3) Marriage Invitation and Marriage Certificate
(4) Marriage Photo
(5) Passport size photos of Husband and Wife

Monetary Settlement/Maintenance/Alimony/Child Custody issues.

A Mutual Consent petition gives you the flexibility to come to your own terms with respect to the issue. Husband can give an full and final settlement to the wife. And the wife cannot claim any maintenance in the future. Otherwise they can decide the Monthly maintenance.

The custody of the child and the maintenance of the child should be decided.

In all this procedure enables couples to part away amicably on a good note, without ruinous litigation, and without much expense.

Procedure for Filing Mutual Consent in Chennai Family Court:-

1.     Both the Husband and wife should present at 10.30 am when the Principal family Court Judge sits in the dias and present the Mutual consent Petition to the Court.
2.     The Principal family court will order the registry to number the Mutual consent petition after go through the Petition. If any defects found in the Petition it should be rectified. If the petition is passed by the registry, then the registry sends the petition to the Chennai Principal  Family Court Judge to provide a hearing date. Usually the hearing date will be 6 months after numbering the Mutual consent Divorce Petition.

Second motion Procedure:

On the appointed date after six months the Husband and wife should appear before the appropriate family court at Chennai. They should declare that there is no chance of re-union. And the court after marking the necessary documents relevant to the marriage, it will post the case for orders on the next day or some other day.  If any one of the parties to the case want to withdraw the case or want to live together, then the court will dismiss the case. Any one of the party can also withdraw the petition before giving evidence in the court. No party can prefer any appeal to any court after the divorce is granted by  on the ground of mutual consent.

Talk to the Chennai Top divorce lawyer for advise on Divorce by Mutual Consent in Chennai @ 9884883318.

Domestic Violence Chennai Helpline:- 9884883318

Daniel & Daniel legal team with experts  in Domestic Violence Act based in Chennai. In today’s scenario Domestic Violence Act is a weapon which is used as attack. This leaves innocent people helpless and victims at the hands of wrong people who use this Act to achieve their selfish ends.
We want to reach all the innocent people who are in need of our legal expertise for the Domestic Violence Act. You may be a woman harassed by In Laws, a man who is blackmailed or wrongly framed by his wife, elders – parents who are facing difficulties due to misuse of this Act. If you are the one in need please reach us through our Helpline.
If you are in need just dial this number: 9884883318

What we want to achieve:

We want to provide protection to you & your family.
Creating awareness about the legal rights of the victims of domestic violence.
To provide help to distressed victims who is suffering from harassment by in-laws as well as misuse of the Domestic violence Act.
Moral & legal support

We are providing moral &legal support to the grievances of the people & also sharing experience & provide legal expertise in fighting the cases effectively

To settle their disputes between husband & wife amicably & peacefully.
To solve the problem through the mediator.
To provide counseling facilities.
Conducting studies related to various issues like Domestic Violence, 498A, 125 Cr.P.C., divorce etc
Contact Domestic Violence Chennai Helpline:- 9884883318.

Saturday, April 9, 2016

What are the documents required for filing a mutual consent divorce?

When a person has completed one year of Hindu marriage and they are separately living for more than one year they can file divorce by Mutual consent. Mutual consent divorce is the only form of divorce which can easily obtained in India. The following documents are necessary to file Mutual consent divorce. They are (1) Marriage Invitation (2) Marriage Certificate (3) Proof of residence of Bride (4) Proof of residence of Bride Groom. or (5) Proof of residence for lastly resided by the couples.

Inter state persons can also apply divorce in Chennai if the jurisdiction of Chennai courts come under Place of residence or Place of marriage is in Chennai.

The author K.P.Satish Kuamr M.L. is the leading family court lawyer in Chennai.

Contact Team Daniel & Daniel for your queries @ 9551716256