Divorce & Maintenance
Bhardwaj & Associates, a leading and reputed law firm in Delhi NCR, offers legal counsel on any issue under the legal purview. We, as a legal expert, provide all assistance and expertise to resolve divorce-related legal disputes in the light of constitutional provisions. We ensure proper legal support to the client to determine victory in the court of law. We make sure clients get all his/her paperwork done properly. Our point-to-point assistance helps clients avoid legal complexities. Bhardwaj & Associates is a perfect destination for one who is striving to resolve his/her legal issues in a divorce-related matter.
So, if you are in legal trouble or facing hurdles in getting a divorce or want to end your marriage without a long-drawn complex legal battle, contact us on the given number or email ID right away, and we will ensure you get legal remedies at a reasonable fee.
Maintenance
As per Indian law ‘Maintenance’ is “an act of maintaining”, i.e. to support with money. According to the law, Maintenance is an amount which is given in the form of monetary support to either of the party (Husband or wife). The provision of Maintenance shall apply to Hindus including Sikh, Jains and Buddhists as defined in Section 2 of Hindu Marriage Act, 1955. According to Section 3 (b)1 , “Maintenance” includes (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage. The basic motive of providing the maintenance is to maintain an equitable standard of living of the spouse or any other dependent personality as it was before the separation.
Types of Maintenance:
1. Interim Maintenance: Maintenance is awarded by the court to either party during the proceedings for divorce because if the case is drawn long, one party should not suffer in lack of monetory support. Section 24 of Hindu Marriage Act,1955 deals with such kind of maintenance. Either of the spouses can claim it.
2. Permanent Maintenance: Under the Section 25 of Hindu Marriage Act, 1955, the court grants a fixed maintenance in the form of either periodical or monthly sums once the proceedings are concluded. Either party can claim such maintenance.
Who Can Claim Maintenance?
Wife, Widowed daughter-in-law, Children (legitimate sons, illegitimate sons, unwedded legitimate and illegitimate daughter, married daughter unable to maintain herself), Parents, any other dependent person can claim Maintenance.
1. Maintenance of wife: When husband and wife live together, it is the duty of husband to maintain wife and not of any other members of his family. The Hindu Adoptions and Maintenance Act, 1956 Section 18(2), Section 125 of Code Of Criminal Procedure, 1973 deals with provisions for maintenance of wife.
In Kulbhushan Kumar (Dr) v/s Raj Kumari, the court declared that wife is entitled to 25% of husband’s net income as maintenance. According to Section 24 of Hindu Marriage Act, 1955 if the court deems fit that if either of the spouses doesn’t have sufficient earnings for proceedings of court or to bear other necessary expenses while the proceedings are still continuing, then the court can pass an order telling the respondent to pay maintenance. According to Section 25 of The Hindu Marriage Act, 1955, the court can order the payment for maintenance to be made to the claimant in periodical or monthly sums after the proceeding complete.
DIVORCE
Types of Divorce:
- Contested Divorce,
- Mutual Consent Divorce
CONTESTED DIVORCE Contested divorce or the divorce case filed by either of the spouse, is applicable and is filed in the scenario or circumstance, in which one of the party to the marriage is ready and willing to part ways from his or her spouse, but the other spouse is not at all ready to divorce the willing one. The petition of contested divorce can be filed by either husband or wife. Grounds on which the contested divorce can be filed Broadly on the below mentioned grounds a case of contested divorce can be filed by either of the spouse:
- Adultery
If the other party after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse it’s called adultery. To obtain a divorce on the ground of adultery, the person filing the divorce case on this ground, had to prove that the other party was living in adultery. The term adultery is basically a consensual intercourse between a marriage person and another if the opposite sex during the existence of the marriage.
- Cruelty
It means when the one of the spouse has treated the other one with cruelty. Cruelty cannot be defined with any degree of precision. It would indeed be unsafe to attempt any comprehensive definition which would cover all cases of cruelty. Cruelty may be brutal or subtle. It may be physical or mental. It may be by words or by gestures or even by mere silence. Cruelty refers to “conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger”. Cruelty can be mental also, it can be defined as the conduct of the either of the spouse which inflicts that the other spouse is in such mental pain or suffering as it would make it impossible for that party to live with other.
- DESERTION
When one of the spouse has left the other spouse unattended for a period of not less than two years is called desertion. Desertion can also be a withdrawal, not from a place, but from a state of things too. It can also be clarified as desertion of the party filing the case by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and also included the wilful neglect of the petitioner by the other party to the marriage.
- INSANITY
When one of the spouse is suffering from an incurable unsound mind or is suffering continuously or intermittently from mental disorder of such kind and to such an extent that the other person cannot reasonably be expected to live with such person. It is to be noted that mere branding of a spouse as schizophrenic is not sufficient. The degree of mental disorder of the spouse must be proved to be such that the other spouse cannot reasonably be expected to live with him or her.
- LEPROSY
If one party has been suffering from a virulent and incurable form of leprosy, then the other party is having the right to file a divorce case on this ground against the person who is suffering from it. Leprosy was “the dreaded disease” once upon a time. However, modern medicine has taken great strides in the direction of its treatment and with the new drugs that are now available, a scientific approach is warranted when the answering the question whether in any given case, leprosy is virulent or necessary.
- VENEREAL DISEASE
If the other party has been suffering from venereal disease in a communicable form, then the other party is having the right to file a divorce case on this ground against the person who is suffering from it.
- RENOUNCING THE WORLD
If one party has renounced the world, by entering any religious order, then the other party is having the right to file a divorce case on this ground against the person who has renounced the world.
- NOT HEARD OF
If the other party has not been heard of as being alive, for a period of at least 7 years, by persons who would naturally have heard of him, had he been alive, then the other party is having the right to file a divorce case on this ground against the person who’s not heard of from last 7 years.
- RAPE, SODOMY OR BESTIALITY
If the husband has been guilty of rape, sodomy or bestiality after the solemnisation of marriage, then the wife of the said person has the right to file a divorce case against his husband on the said ground.
- DECREE OF ORDER AWARDING MAINTENANCE
If in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a processing under Section 125 of the Criminal Procedure Code, 1973, a decree or order has been passed against the husband awarding maintenance to the wife (notwithstanding that she was living apart), and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or more.
- REPUDIATION OF THE MARRIAGE
That the marriage was solemnised before the wife the turned 15 years of age and that she has repudiated the marriage after attaining that age, but before attaining the age of eighteen years. MUTUAL CONSENT DIVORCE The concept of mutual consent divorce basically comes into existence when both husband and wife are ready to part ways with each other through an amicable legal process. It is very important to understand that, the mutual consent divorce can only be taken or can only be granted by the family settlement terms in regards to alimony, maintenance and child custody or any other condition are being agreed upon by both the parties. The time frame in which the mutual consent divorce proceeding takes place is fixed for 6 months, however in the present scenario the mutual consent divorce proceedings can take place much earlier than 6 months if the separation between the husband and wife is over 18 months old. DOCUMENTS REQUIRED FOR DIVORCE
- Five passport size photographs of each of the spouse,
- Two joint marriage photographs,
- Marriage card or marriage certificate,
- Id proofs of both the spouse and children (if any),
- Settlement deed or Memorandum Of Understanding (if any).
Child Custody
Child custody is very sensitive issue. It is one of the most challenging aspects of separation (divorce). An order by the court will have a direct impact on all three – the mother, the father and the child. Hence, it is important to understand how child custody works in India. Such rights under Indian Divorce law is not an easy thing. But once a divorce decree is ordered, the court has to give a rule in the best interest of the child. In such case, the divorce affects the child more than it does to the husband and the wife. Before the verdict, the court examines the claims by both the parents, who are contesting for child custody. The court considers factors that will work the best for the child before granting child custody. One thing is important to highlight here that gone are the days when the mother is favoured by awarding the custody rights of the child as nowadays the mother and the father have the same rights to claim child custody and the court stands neutral while considering the facts presented by both parties.
What Is Child Custody in India?
The Constitution of India gives legal rights to claim the custodial rights of the child/children. The mother has the right to raise and care for the child and she is entitled to visitations with the child. But, in the case of the father, he has equal rights to raise and care for his child but does not have the right to visitation. The court reviews social, financial, family-background, mental health and child-friendly atmosphere in the house.
What factors does the court consider before granting child custody?
The court considers various factors that are conducive for the child before awarding custody rights to either the mother or the father. The factors include but are not limited to:
The physical, emotional and mental health of the child
The willingness of the child
Any evidence of domestic abuse – verbal, physical or mental will go against of parent’s claim
Safe-keeping and ethical upbringing of the child
A stable and healthy home environment
The strength of the parent-child relationship
The parent’s willingness to hold child custody
The wishes of the deceased parent if any
Laws involve in Child custody case
The provisions of child custody are provided under the matrimonial statutes governed by the Personal Laws and the Guardians and Wards Act 1890 (GAWA). GAWA governs child custody matters in India along with other personal laws.The act provides for regulations and redressal pertaining to custodial issue irrespective of the religion of the parents or the child and is read along with the personal laws governing custody of minor children.
Hindu Laws: According to the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of five (5) is awarded to the mother and in case of a boy or unmarried girl above the age of five, the father gets the custody. Section 26 of the Hindu Marriages Act, 1955 provides for the Court to pass interim orders and make provisions with respect to the custody, maintenance and education of minor children, consistently with their wishes and also to revoke, suspend or vary any orders previously passed.
Christian Laws: As per Section 41 of the Indian Divorce Act, 1869, the courts have the right to pass orders as to the custody, education and maintenance of minor children, in any suit for obtaining a judicial separation.
Parsi Laws: As per Section 49 of the The Parsi Marriage and Divorce Act, 1936, the courts have the right to pass orders as to the custody, education and maintenance of minor children, in any suit for where the subject of the suit is marriage of the parents.
Muslim Laws: As under the Right of Hizanat, the custody of the child is always with the Mother until the son reached the age of 7 and the daughter attain puberty. The mother cannot be deprived of this right unless considered unfit.
Domestic violence
Definition Of Domestic violence
Any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent will get legal remedies under the Protection of Women From Domestic Violence Act, 2005. Domestic incident report means a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person. According to the act, “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
What is the Domestic Violence Act, 2005?
The Protection of Women From Domestic Violence Act, 2005 provides protection from the ‘domestic violence’. The Act ensures the protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and formatters connected therewith or incidental thereto.
The act includes all aspects of violence within the family. The Act throws light on every form of violence be it physical or mental.
Here are some forms of ‘Domestic Violence’-
Physical abuse: It covers any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force.
Sexual abuse: It throws light on any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.
Verbal and emotional abuse: This kind of violence includes insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
Economic abuse: This categorycovers deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity.
Penalty under Domestic Violence Act, 2005
A breach of protection order, or of an interim protection order, by the respondent, shall be an offence under the Domestic Violence Act, 2005 and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.
The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused. While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.
MEDIATION AND COUNSELLING
Mediation Mediation is a part of negotiation. Mediation is a process in which two or more people or parties are discussing their differences and one impartial third person (mediator) intervenes and attempts to reach a solution on one or more areas of disagreement As per Section 89 of the Code of Civil Procedure, 1908 it is a form of alternate dispute redressal mechanism where the parties do not litigate to resolve their issues but try to have a discussion to amicably resolve their disputes before a final binding decision by the Courts. The settlement arrived during mediation is reduced in writing thereafter and is binding on both parties. Counselling Divorce counselling is a form of relationship therapy designed for married couples on the verge or dealing with the aftermath of permanent separation. Divorce is a serious legal procedure that affects not just the separated couple, but also other members of their family. We at Delhi Divorce lawyers aim to mediate the matrimonial differences and counsel the couple so that sufferings attached with a divorce can be eliminated.