Instant and Immediate Divorce in India

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

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

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

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

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Children born out of void marriages are legitimate

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

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

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

The Centre filed an appeal against this judgment of the Madras High Court. The Supreme Court, however, dismissed the petition filed by the Centre and termed it as unnecessary litigation. 
The Author Mr.K.P.Satish Kumar M.L. is the leading Child custody lawyer
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Divorced Daughter is eligible for appointment compassionate grounds

The Calcutta High Court held that a divorced daughter comes within the definition “unmarried daughter” and is eligible for appointment on compassionate grounds.

Chief Justice Nishita Mhatre, Justice Tapabrata Chakraborty and Justice Dipankar Datta, “The beneficent scheme underlying the settlement would be thrown out of gear in the event, a restrictive meaning is applied and benefits are not extended to a divorcee daughter, who returns back to her father’s family after divorce and cessation of her relationship with her husband. Such interpretation cannot be construed to be an instance of misplaced sympathy or to be based upon a pretentious pulpit of morality.”

In the present matter, an appeal was filed challenging the order passed by a single judge in which appellants were denied relief by holding that a divorced daughter of an employee is not entitled to the benefit of compassionate appointment/ monetary compensation.

The respondents contended that daughter ceases to be a member of the family once she is married. After getting divorced her status does not change back to daughter. Also, the respondent relied on National Coal Wages Agreement which does not list divorced daughter as a dependent, hence, making her ineligible for appointment on compassionate grounds.

The court observed, “There could hardly be and, in fact, there is no dichotomy of lexicographic opinion that the word ‘unmarried’ does not only mean ‘never having been married’ but, if the circumstances do permit and warrant, it may also mean ‘not married on the relevant.”

“In construing the words “unmarried daughter”, such construction that sub-serves common good and not the reverse ought to be adopted; and the words “unmarried daughter”, as noticed earlier, are wide enough to take within its fold one who does not have a husband on the material date. There is no earthly reason as to why bearing in mind the purpose or object of the scheme for providing employment opportunity or monetary compensation to a dependent of a deceased worker, the court should cut down the amplitude of the word ‘unmarried’, which is intelligible and can be given full meaning in the context where it is used.”

Therefore, in the present matter, the Court granted a month’s time to the respondent to calculate the Appellant’s financial benefits in terms of para 9.5.0(ii) of the NCWA, which gives an option to the female dependent to either accept monthly monetary compensation or employment. Arrears were to be disbursed to her within 2 months.

The Author Mr.K.P.Satish Kumar M.L. is the leading Family Court Advocate in Chennai

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

If a Hindu married couple is separating by mutual consent then they no longer need to wait for six months for getting a separating order from the court.

On Tuesday Supreme Court held that marriage between two Hindus can be legally terminated in just a week as the “cooling off” period can be waived off as it is not mandatory.

The Apex court clarified that if all the efforts to reunite parties and mediation and conciliation also fails between them then the wait for a six-month period can be done away with.

This ruling was passed by the court after a petition was filed by a couple seeking direction to waive off the cooling off period as they have been living separately for 8 years and they had already settled all issues pertaining to child custody and alimony.The couple made a plea before the Supreme Court that delay in divorce would affect their chances to resettle in life.

In the present matter, the court took a stand that delay in proceedings only prolongs subsequent resettlement. Waiving off period can be considered if the parties have been living separately already for a year.

The court said, “The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of the status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off period was to safeguard against a hurried decision if there was otherwise the possibility of differences being reconciled.”

The bench comprising of Justice AK Goel and UU Lalit said that the object of the cooling off period is to safeguard against a hurried decision taken by a couple to get separated and to allow them to explore ways to settle their disputes however this could not be made mandatory.

As per Section 13B(2) of the Hindu Marriage if both the parties do not change their pleas for divorce in a time period not less than six months and not later than 18 months, then the court pass the decree to declaring the marriage to be dissolved.

The court observed that the period of six months to 18 months provided in section 13B is an interregnum to give time and opportunity for the couple to reflect on their move. This period can be waived off if conciliation fails and parties have genuinely settled their differences pertaining to alimony, custody of the child or any other issues pending between them.

The bench observed, “The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option.”

The Supreme Court bench after examining all the issues came to the conclusion that Section 13B(2) is mandatory and not a directory. The court held that the cooling off period could be waived off if the court is satisfied that the parties are living separately for more than a year with no chance of reconciliation and a further waiting period would only prolong their agony. The bench held that the parties can file a waiver application just one week after the divorce petition is filed and the court will take a call on the waiving off period. 

The Author K.P.Satish Kumar M.L. is the top Divorce lawyer in Chennai

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Centre to streamline issues related to maintenance

Centre has constituted a district-level committee to address and streamline the issues related to maintenance as large number of women are facing difficulties in getting maintenance despite the fact that the court has ruled in their favour.   

To resolve the procedural difficulties in accessing money awarded to women by court in cases of divorce or domestic violence, the central ministry of Child Development, Home Affairs and Law and Justice are involved in heavy deliberations on how to effectively deal such complaints from women.

The proposed committee will be headed by a district judge with the superintendent of police and representatives from civil society group as its members. This proposal if implemented will bring huge relief to women specifically to those who belong to lower strata of society since they don’t have funds to pursue legal battles.

This move of the centre is a step forward in strengthening the rights of women after the recent judgement of Supreme Court which declared the practice of triple talaq as unconstitutional.

Post the verdict from Supreme Court, the government has clarified that henceforth any case of instant triple talaq will be treated as a case of domestic violence.

The minister of women and child development has written a letter to Law Minister Ravi Shankar Prasad telling him that the ministry has been receiving a plethora of complaints relating to maintenance. The ministry has urged to expedite the working of the committee so that such matters can be addressed at the earliest.    

Maneka Gandhi said, “The objective is to monitor the timely disbursal of the maintenance awarded by the court. The committee will also supervise the speedy execution of warrants in case one is being issued by the court towards the grant of maintenance.

The law ministry is also deliberating on approaching Chief Justice of India and requesting him to issue an advisory to all chief justices of the High court to ensure that the subordinate courts should simplify the procedure and “ensure timely execution of proceedings with regard to grant of maintenance of women.  

Article by the Mr.K.P.Satish Kumar M.L. Top Divorce Advocate in Chennai

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

The Supreme Court in a recent appeal of Section 498A observed that if the in-laws and husband do not speak to the bride it does not amount to cruelty.
A lady filed a complaint under Section 498A to the police, that after her marriage she stayed with her husband and in-laws for 20 days, during which she was left completely alone and no one talked to her.

She stated that her husband was "not even willing to talk freely to her despite her sincere efforts". She accused the husband of avoiding her and refusing to consummate the marriage.

The SC had earlier in a case ruled that refusal to cohabit could be a ground for seeking divorce. After the husband left for Australia where he worked, no one in his family talked to the woman, forcing her to leave the matrimonial house for her parent’s place.

She claimed that her parents had spent Rs 15 lakh on the marriage and Rs 20 lakh on gold ornaments. The Hyderabad police filed a charge-sheet and the case is pending before the metropolitan magistrate.

The Hyderabad high court rejected a petition by the husband and his parents seeking quashing of the case. They appealed to the Supreme Court. A bench of Justices Arun Mishra and Mohan M Shantanagoudar initiated the wife's complaint and said her story did not reveal any offence under Section 498A ( cruelty at matrimonial home to drive the woman to commit suicide, cause injury to her or harassment for dowry) or Section 406 (breach of trust) of Indian Penal Code as there was no demand for dowry. The bench quashed the case terming the complaint to be devoid of any charge under Section 498A or Section 406 because cruelty means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, and the women in the present case was not subjected to any such cruelty.

Article by K.P.Satish Kumar M.L.  Top Divorce Advocate in Chennai

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Triple Talaq banned by Supreme Court for 6 months until Parliament makes law

In a landmark verdict, the apex court bans the practice of Triple Talaq which allows Muslim men to leave their wives immediately by uttering “talaq” thrice. The practice of triple talaq has been declared unconstitutional by 3:2 majority.

The Supreme Court has banned the practice of triple talaq for six months until parliament introduces new legislation to regulate the practice.

The five-judge bench called “triple talaq” bad in law and said, “We hope the Legislature will consider and take into account Muslim Personal Law while making legislation. All parties must keep their politics away and decide this.”

As per the Constitution, the practice of triple talaq is legal for Muslim. Several Muslim women have been divorced, including on Skype and Whatsapp and have challenged this 1400-year-old practice.

This landmark ruling was delivered by five judges of different faiths, Chief Justice Jagdish Singh Khehar, Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit and Justice S Abdul Nazeer. The bench heard the case over five days from May 12 to May 18 and reserved judgment on questions like whether triple talaq is fundamental to Islam and whether it is an enforceable fundamental right.

The Muslim personal law board issued an advisory that Muslim women should be given the choice to opt out of instant triple talaq before their Nikah or wedding.

The government had backed the petitioners, declaring triple talaq unconstitutional, and derogatory and discriminatory for women.

Article by Mr.K.P.Satish Kumar M.L. Leading Divorce lawyer for Muslims 

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"Not having a toilet at home amounts to cruelty"- Family courts grant divorce

In a landmark ruling, a family court of Rajasthan Bhilwara granted divorce on the grounds that absence of toilet at home amounts to cruelty.

In the present matter, a woman filed a plea for divorce as there was no toilet in the house. The woman has filed a divorce petition on October 20, 2015, in family court of Rajasthan, Bhilwara.

The woman said in her petition that she was married in 2011 and since then, even after repeated assurances, her husband has failed to build a toilet and has been forcing to defecate in open.

Justice Rajendra Kumar Sharma observed, “has it ever pained us that our mothers and sisters have to defecate in the open? Women in villages have to wait for dark to venture out in order to relieve and as a result, has to bear physical pain. It is an irony that people who spend a lot of money alcohol, tobacco, and mobile phones don’t have toilets in their homes.”

While adjudicating the matter, the court also observed that defecating in open is “disgraceful” for society and a “torture” to women thus having a toilet is necessary at home.

If there is no toilet at home, it amounts to cruelty and it is a valid ground for divorce.

Article by K,P.Satish Kumar M.L. leading family court lawyer in Chennai

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Claim under domestic violence cannot be rejected because it arouse out of second marriage

The wife can claim for maintenance cannot be denied under Domestic Violence Act merely because she is married before.

In the instant matter Justice Ashutosh Kumar held that, “The incidences of domestic violence are enumerated in Section 3 of the Act which defines domestic violence and it includes physical, verbal, emotional and economic abuse. From the evidence on record,  there is no dispute about the petitioner having being subjected to domestic violence. It would then make no difference, so far as maintenance is concerned, if the petitioner was married to someone else and the same fact was not brought on the record.

The lower court in the instant matter allowed maintenance only to her minor daughter and denied maintenance to her. The court rejected her claim only on the ground that it was her second marriage.

While quashing the judgment of the lower court, High Court refused to accept the reasoning of the lower court and held that the fact of the petitioner being in shared household with the respondent was an established fact.

In the present case, the court also held that while adjudicating a complaint under Section 12 of the Domestic Violence Act, the court cannot decide on the validity of the marriage between the parties.

Justice Singh observed, “The case of the petitioner is that she was betrothed to one Noor Mohd while she was only 14 years of age and the marriage between her and Noor Mohd was never consummated as there were no rukh Sati. Assuming but not admitting this fact to be incorrect, what cannot be doubted is that the petitioner has lived with the respondent and was subjected to domestic violence. The appellant court seems to have misdirected himself in taking it upon himself to decide whether a valid marriage existed between the petitioner and the respondent."

The Delhi High Court allowed the wife’s petition and directed payment of maintenance of Rs, 12,500  per month, collectively to the daughter and the wife.

Article by Mr.K.P.Satish Kumar M.L. Top domestic violence lawyer in Chennai

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Living with another woman and not maintaining wife amounts to Domestic Violence

The omission of the husband is neglecting to maintain the wife and living with another woman amounts to “economic” and “emotional” abuse and wife is entitled to protection under Domestic Violence Act.

In the present matter, the wife has filed a petition for maintenance after three decades. Considering this the husband contended that his wife had no grievance from past 30 years about his second marriage and hence her claim is barred by limitation.

The court observed, the question of limitation raised by the husband cannot be accepted mechanically only on the point that the petition for maintenance was filed after three decades.

Justice Rathnakala said, “the obligation of the husband continues throughout the marriage and the husband cannot get away with the excuse that for many years the wife did not make any request for maintenance.”

The court explained that “Domestic violence” as defined under Section 3 of the Act among others take into fold “economic abuse” as well. The omission of the husband to maintain the wife during the matrimonial life comes within the ambit of Section 3 of the Act. The very fact that he has led life with another woman and begot children from her amounts to “emotional abuse” as contemplated under the Act.

This affects the physical and the mental well being of the aggrieved person and this can be termed as domestic violence under the Act.

In this case, the court held that the husband is guilty of domestic violence and the wife is entitled to protection under Domestic Violence Act. The limitation cannot be a ground for the husband to escape limitation.

Author Mr.K.P.Satish Kumar M.L. is the leading Domestic violence Advocate in Chennai

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Divorce decree by Singapore court does not negate Domestic Violence Case

The couple has taken divorce by a Singapore sharia court on a plea filed by the husband, the domestic violence case filed by the wife in India was still maintainable.

The husband who was based in Singapore was directed to pay INR 2.40 lakhs monthly maintenance to his minor son and divorced wife.

In the opinion of the court, the husband cannot shy away from his obligations to maintain his estranged wife and their minor children, if she was not in a position to maintain herself and the children when the husband was “gainfully employed”. Deciding in the favour of the children, the court observed, “No order in relation to the maintenance of the minor children has been passed by the Singapore court and it is the obligation of the husband to maintain them as a complainant is currently unemployed.”

The wife has filed a complaint through her counsel Prabhjit Jauhar alleging that she was subjected to domestic violence while she was residing with her husband. She alleged that she was forced to leave Singapore on August 28, 2013 after which she filed the present case on May 27, 2014.

Jauhar argued that court cannot escape “punishment” for domestic violence meted out to the wife just because divorce is granted. Hence, the wife and the children were entitled to compensation under Domestic Violence Act.

The husband claimed that the petition filed by the wife in an Indian court is infructuous and the Singaporean courts were competent to adjudicate the dispute.  

Metropolitan Magistrate Preeti Parewa refused to grant any interim maintenance sought by the wife noting that the alimony granted by the Singapore Court was sufficient to maintain her case.

The Court held that even when the divorce is granted, claim under domestic violence act is maintainable.

Article by Mr.K.P.Satish Kumar M.L. leading Domestic violence lawyer in Chennai

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Husband is obligated to maintain minor child even if wife leaves him

The father cannot run away from the responsibility nor can he be allowed to skip his obligations to maintain his son or daughter and father is duty-bound to provide all facilities, including better facilities for education and health for his minor child.

Applicant’s advocate argued that it was his client’s wife who had voluntarily withdrawn from the company of her husband and hence was not entitled to maintenance

Also, his client has filed a petition filed under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights which was allowed by a Bhopal Court on January 16, 2016.

The Court held that it is the duty of every father duty to maintain his minor child, the court said: “In the present case, it is established on record that from 12.6.2012 present applicant, who is a father of minor son Aryan, has not shouldered his responsibility to provide even the basic amenities to his son. It is not the case of applicant/father that he has provided any financial aid to his wife in order to show that he has shouldered his responsibility as a father. In that view of the matter, the present applicant cannot agitate the issue before this Court on the ground that his wife has withdrawn her company from his society. The wife may withdraw the company, but that does not absolve the responsibility of the father to provide maintenance to his son or daughter.”

In the instant matter court passed an order of maintenance of INR 7,000 per month and an additional cost of INR 25,000 was imposed.

Article by Advocate K.P.Satish Kumar M.L. Top child custody lawyer in Chennai

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No relief of restitution of conjugal rights to husband who remarried during pendency of the suit

Right to conjugal rights or right to stay together can be enforced against the husband or the wife who is living away from the spouse without any good reason. One can file a suit for restitution of conjugal rights and if the suit is successful then the married couple will be required to stay together.  

In the instant matter, the marriage was solemnized between the parties on 20.09.1981 and subsequently, the appellant-wife has left the matrimonial home without any justifiable cause and hence the husband filed a suit for restitution of conjugal rights.

The High Court of Madras refused to grant the relief of restitution of conjugal rights to a man who had remarried during the pendency of the suit.

When the husband filed the petition before the trial court of Tirunelveli, the court granted the relief of restitution of conjugal rights ignoring the fact of a second marriage by the husband and observed that being a Muslim, the husband was permitted to contract more than one marriage.

However, the Madras High Court, accepted the arguments presented by the wife and observed, “When the husband proceeds against for wife for restitution conjugal rights and also contracted second marriage during the pendency of the suit for restitution of conjugal rights and also contracted second marriage during the pendency of the suit for restitution of conjugal rights and in the instant case, the wife also complained of physical cruelty to extract money, after 18 years of matrimonial life. Then the burden proof is on the plaintiff husband who takes a second wife to explain his action to prove that, his taking of a second wife involves no cruelty to the first wife, by adducing necessary evidence to that effect.”

After considering the evidence the Court ruled in the favor of the wife and Justice RMT Teeka Raman observed  “In the circumstances, it could not be unreasonable to hold that after the plaintiff-husband contracted a second marriage, the appellant wife is reasonable and justifiable in staying away from her husband. This Court while bearing in mind, the right of Muslim husband as to contract of marriage more than once, however, it has to be borne in mind that the decision in a suit for restitution of conjugal rights does not entirely depend upon the right of the Muslim husband. The Court should also consider whether it make it inequitable for it to compel the wife to live with her husband. Our notions of law in that regard have to be held in such a way so as to bring them in conformity with modern social condition”.

Article by Advocate K.P.Satish Kumar M.L. leading family court advocate in Chennai

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Biological father taking away of child does not amount to Kidnapping

The biological father cannot be charged for kidnapping his own child.

In the instant matter, the court was hearing a petition filed by Mumbai’s businessman, Sajid Shah for challenging his extradition request from the Netherlands to India. His estranged wife Nazneen has filed a complaint against him for abducting their 2-year-old daughter from Amsterdam. After kidnapping the daughter he brought her back to India in September 2016. She has accused Sajid Shah of “violently kidnapping their daughter” from her house and also launched an online campaign for the child’s return. Subsequently,  an Interpol notice was issued for Sajid’s arrest. Following the Interpol notice, the Netherlands government approached the Indian authorities.

Nazneen and Sajid married in 2011 and got separated in 2016.  After the couple separated, a Dutch court awarded Nazneen their daughter’s custody in 2016. Meanwhile, Sajid filed a divorce and custody petition before Bandra family court. Sajid claimed he was trying to protect his daughter from his “abusive wife”.

The MEA, in it’s May 5, 2017, letter, rejected the extradition request. The center in its affidavit submitted “Since the taking away of a child by her biological father does not amount to kidnapping, it is not an extraditable offence.”  MEA has rejected the extradition request while stating that Sajid shall not be arrested and no corrective steps will be taken against him and his daughter.

Article by Advocate K.P.Satish Kumar M.L. leading Child Custody Advocate

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One Night Stand cannot be considered as Marriage under Hindu Law

The physical relationship between a man and woman by choice or by chance or by accident cannot be termed as “marriage” under Hindu Laws.

It was also held by this Court that a baby born out of this relationship will have no rights over the father’s property if no marriage can be proved in the court.

Justice Mridula Bhatkar said that “Broadly either customary solemnisation of marriage is required or performance of legal formality is a condition precedent to label that matter relationship as a marriage. Any sexual intercourse that took place by choice or chance or by accident is not considered as marriage.”

The court does take a note of that our society is going through a sea change as to how marriage is seen in today’s scenario and as defined under Section 16 of the Hindu Marriage Act. It held that “In some countries, homosexual unions are  accepted as marriages, so also live-in relationships and children born within such relationships have posed as complicated issues and a challenge to legal thinkers to define the term of marriage, whether in wider or narrow meaning.”

The rights of a child are determined only on the basis of the institution of marriage even though it has been subsequently held void. In a leading case, the man had married twice. As per Hindu Laws, his second marriage was void as he has not divorced the first one. Though in the instant case the second marriage was considered void but the daughter from his second wife had legitimate rights in the share of his property. 

Article by Advocate K.P.Satish Kumar M.L. leading divorce lawyer in Chennai

for free legal queries call Daniel & Daniel @ 9840802218

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Welfare of the Minor is the paramount consideration of Child Custody

The minors should not be treated as “Chattel” for claiming custody.

In the present matter, the six-year Jhanvi was staying with her father. Jhanvi’s mother deserted her husband and her young daughter on 23rd March 2012. At that time, Jhanvi was only 2- year old. Subsequently, Jhanvi’s father filed for a divorce and sought permanent custody of their daughter.

During the pendency of this above petition, Jhanvi was allowed to meet her mother twice a week and during summer and winter vacations.

Petitioner claims that her daughter was physically abused by her mother on multiple occasions. Also, her medical reports confirm that she suffered “multiple bruises, apart from tenderness over her arms, roots of nose and back” after meeting her mother on January, 28.

Again, she suffered similar injuries on February 18. Later she informed her father that she does not intend to meet her mother as she use to hit and pinch her.

The petitioner pleads that since his daughter has been physically tortured and traumatized by her mother, she should not be allowed to meet her mother. At the same time, he also requested the court to get his daughter evaluated by a child psychologist.  

Subsequent to the request of the petitioner, the family court appointed Dr. Harish Shetty who is a  psychiatrist as Jhanvi’s psychologist. However, the petitioner vehemently objected to this as Dr. Harish was a psychiatrist and not psychologist.

Jhanvi's mother blatantly denied all the allegations and stated that Jhanvi was not with her when such incidents are claimed to have occurred.

The Bombay High Court observed that this was a clear case of child abuse and “It is well settled that welfare of minor is paramount consideration for deciding even a temporary custody of a minor. Minors cannot be treated as chattel for claiming custody.”

Considering Jhanvi’s apprehension and looking into her safety and well-being, the court has stayed the order passed by Family Court which permitted her mother to meet her.
Article by Advocate K.P.Satish Kumar M.L. leading child custody advocate in Chennai
for legal queries contact Daniel & Daniel @ 9840802218

Instant and Immediate Divorce in India

Supreme court in land mark Judgment has waived a 6 months cooling period in the case of Mutual consent divorce. It held Section 13B(2) of the Hindu Marriage Act is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. It has also said that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice. Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions: i) How long parties have been married? ii) How long litigation is pending? iii) How long they have been staying apart? iv) Are there any other proceedings between the parties? v) Have the parties attended mediation/conciliation? vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties? The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony. On such cases when a party make a petition to dispense the 6 months cooling period, then the court will use its discretionary power to grant mutual consent divorce as early after a week time. The Author Mr.K.P.Satish Kumar M.L. is the leading divorce lawyer in Chennai. Talk to the top divorce lawyer and send your queries to our whattsapp service No.9

840802218.