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Nov 2020
24th Nov 2020

Stages of Contested Divorce

When the marriage does not result in marital cooperation and harmony, it results in a divorce. Divorce law provides the framework that governs the circumstances under which a marriage may be brought to an end and spouses are free to remarry. A divorce can be caused due to a few reasons and can be either a mutual divorce or a contested divorce. We here will provide an excellent explanation for contested divorce.

CONTESTED DIVORCE: A contested divorce is one where the husband or the wife wants a divorce, but the other spouse does not. Even when both the parties want a divorce, but cannot agree on any issue such as alimony, custody of children, etc., it is a case of contested divorce.

Grounds for a contested divorce



  • Adultery- Adultery means after the solemnization of the marriage, anyone whether the husband or wife had voluntary sexual intercourse with any person other than his or her spouse. In India, earlier, adultery was a criminal offence but in a recent Supreme Court judgment adultery has been decriminalized. But it still can be used as a ground to seek divorce from a spouse who has been committing adultery.

  • Cruelty-It is described as a deliberate act which can endanger physical and mental health. It can lead to suffering, mental or physical violence, and torture.

  • Desertion– Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent. If one of the parties deserts the other one without giving any reasonable reason, then, it is a good reason to obtain a divorce from the other.

  • Religious Conversion-If one of the partners is no longer a Hindu, then the justification for divorce may be found in a Hindu marriage.

  • Insanity–If the spouse is unable to perform the normal duties that he or she is required to perform due to some mental illness or disorder then, in that case, divorce can be sought. However, if the mental illness does not hamper the capabilities of the person from performing his or her duties then the divorce cannot be claimed.

  • Leprosy-If the spouse has been suffering from some virulent and incurable form of leprosy, then, the aggrieved can seek divorce. Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is transmitted from one person to another. Thus it is considered as the valid ground for divorce.

  • Venereal Disease– Under this concept, if the disease is in communicable form and it can be transmitted to the other spouse, then this can be considered as the valid ground for divorce.

  • Renunciation– It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead.

  • Presumption of Death– In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.




Naveen Kohli versus Neelu Kohli, (2006) 4 SCC 558 - It was held that the marriage had been destroyed past any expectation of salvation, the court held that open intrigue and the interests of all concerned lay in the acknowledgement, in law, of this reality. That despite the fact that the spouse was not pleasing to separation by common assent and appeared to have made plans to live in anguish just to make the life of her significant other a hopeless heck, open intrigue lay in the disintegration of the marriage bond. Keeping a hoax of marriage alive in law was held to be increasingly helpful for unethical behaviour and conceivably more biased to the open enthusiasm than the disintegration of a marriage. Not conceding a separation under such conditions was held to be awful for the gatherings. The allowing of separation would offer them the possibility, both mentally and inwardly, to settle down sooner or later and start another part throughout everyday life

Information/Documents required for contested divorce

  • Aadhar card of the Petitioner.

  • Residence Facts of marriage between husband and wife.

  • Photos of marriage of the husband and wife.

  • Descriptions of husband’s and wife’s occupation and income today.

  • Three financial years’ income tax statements and bank statements.

  • The provisions / facts on which the divorce is filed.


Steps for filing a contested divorce

  • Step 1:Drafting and submission of the petition (submissions for divorce) -The application drafted must be submitted to a family court together with the corresponding court fees. For the preparation of your petition, you need the right advice and guidance from a reputable and competent and experienced divorce lawyer.

  • Step 2: A summons/notice is issued by a court of law to the second party. The purpose of a summons is to remind the other party that their wife/husband initiated the divorce process.

  • Step 3: The party shall be present at the Family court on the day specified in the summons after the summons has been issued along with the reply/written statement.

  • Step 4:After the submission of the reply, the parties to divorce must provide sufficient proof and evidence at the Court in this stage. The test and cross-examinations of the parties, witnesses and testimony must be performed before the courts by respective lawyers. This is an important step in the divorce process.

  • Step 5: Argument - On the basis of documentary proof submitted and testimony, argument is made by the counsel of both of the parties.

  • Step 6: Final Order- Upon effective completion of all the previously listed steps, the Court must issue a final order. If any party is not happy with the final order, the same can be questioned in superior courts.




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10th Nov 2020

RIGHTS OF CONSUMER

The concept of protection of rights of the consumers is not new; rather it is a practice that has been present in the society and various countries in one form or the other historically. In India, the Consumer Protection Act was enacted in the year 1986 with an aim to provide more protection to consumers against the evil practices of the market. It effectively deals with the problems faced by an individual consumer and has no express provisions regarding “maintaining or increasing supplies of any essential commodity or for securing their equitable distribution, and availability at fair prices or dealing with persons indulging in hoarding and black-marketing of, and profiteering in, essential commodities and with the evil of vicious inflationary prices”.

The Act is seen as an attempt to remove the helplessness of consumers against the powerful and dominant players like the merchants and businessmen. The greatness of the Consumer Protection Act lies in its flexible legal framework, wider jurisdiction, and inexpensive justice. One can find in this legislation a mixture of principles of torts and contracts.

Who Is A Consumer?


As per sec. 2(d) of the Act, ‘consumer’ has been defined as any person who:

  • buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

  • hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.




In the case of Consumer Unity and Trust v. State of Rajasthan and others 1991 (CPR) State Commission Jaipur, it is stated that the following are the conditions required to claim as a consumer.

1) He should be served.

2) The service should be hired by him.

3) For the hire of the service, he should pay the return as per Section 2 (1) (d) (2) of the Act

In the case of M / s Cosmopolitan Hospital v. Basant Nayar 1992 (1) CPJ 302 National Commission, treatment was received by the complainant on consideration. The complainant comes under the category of consumer; the complaint presented by him against the hospital is prevalent.

In another case, the complainant was ill. The complainant received medical services in a private hospital by reward. The tenant had given ten thousand rupees to the hospital. The hospital suggested that specialist services should be obtained. The complainant paid the fee to the defendant for obtaining the services of a specialist. The fee in the hospital was given to the specialist concerned. In this situation the consumer situation of the complainant was to be considered. In the case of presenting a complaint against both the complainant hospital and the concerned specialist, it is considered to be the status of the consumer.

In the event of borrowing a vehicle, the borrower is considered to be a consumer Surendra Kumar Aggarwal became Telco Finance Limited 2006 CPJ 68 State Commission Chhattisgarh In this case it was argued that the complainant had purchased the vehicle in question for commercial purpose. Therefore, the status of the complainant was not a consumer under the Act. Determined by the State Commission that we find that the dispute is in relation to providing finance service in purchasing the vehicle in question. The position of the complainant was considered as a consumer. The decision by the National Commission in this regard expressed reliance on the National Insurance Company 2005 A CPJ 27 National Commission against Harsolia Motors. The objection of the complainant not being a consumer was invalid. The corporation is not a consumer The corporation had submitted a complaint in the case of Punjab Land Development v. Mahendra Jeet Singh 2004 (3) 156 CPJ Union Territory Commission Chandigarh. The corporation's position was not considered consumer.

Jurisdiction of Consumer Forum


In India consumer court is categorized in hierarchal ways:-

  • The top most is National Consumer Disputes Redressal Commission (NCDRC). A top consumer matter lawyers files a consumer claim before NCDRC if the value of the claim exceeds 1 crore. Our best delay possession lawyers also files cases before NCDRC against the fraud builders.

  • The second one is the State Consumer Dispute Redressal Commission where the matter is filed by our best consumer lawyers if the value of the claim exceeds 20 lakhs but is within 1 crore.

  • The third is the District Consumer Dispute Redressal Forum. Our team of best consumer lawyers represents the cases before various District Forum if the value of the claim is upto 20 lakhs.


Who can file a consumer complaint?



  1. A consumer to whom the goods are sole or are agreed to be sold or service has been rendered or agreed to be provided.

  2. A firm, irrespective of it being registered or unregistered.

  3. An individual.

  4. A Hindu undivided family.

  5. An association of persons or a cooperative society.

  6. State Government or Central Government.

  7. Legal heirs of the consumer if he/she is deceased.


Procedure for Filing a Complaint


A complaint can be filed by a complainant against the seller, manufacturer, or dealer of goods which are defective or against the provider of services if they are deficient in any manner whatsoever. An unfair trade practice or restrictive trade practice can also invite complaint.

Having proof along with your complaint is an essential point and makes your case stronger since the beginning. Copies of documents like cash memo, receipts, agreements, copy of the bill of the goods bought, warranty and guarantee documents and also a copy of the written complaint and notice made to the trader requesting him to rectify the product, etc., are to be submitted along with the complaint. The complainant is required to file three copies of the complaint, together with enclosures, for official purpose plus copies for the number of Opposite Parties. In case the transaction took place on an online platform, the consumer must contain with him prints of the information exchanged via e-mails, the record exchanged via e-mails.

Also, certain fee has to be paid along with the complaint. This is a nominal amount prescribed by the redressal forum according to the amount of compensation claimed. It is to be paid via postal order or a demand draft.

Consumer Protection Act (CPA), 2019




The new Consumer Protection Act, 2019 effectively replaces the nearly three decade old Act and tried to mold itself to live up to the expectations of a digitalized-modern-consumer. The Digital Age has ushered in a new era of commerce and digital branding, as well as a new set of customer expectations. Digitization has provided easy access, a large variety of choice, convenient payment mechanisms, improved services and shopping as per convenience. However, along the growth path it also brought in challenges related to consumer protection.

Rights of Consumers


The new act has defined some rights of the consumers. They include six rights which are as follows:



  • Right to be protected against the marketing of goods, products or services which can be hazardous to life and property

  • Right to be informed about the quality, quantity, potency, purity, standard and price of goods, products and services

  • Right to be assured of access to goods, products and services at competitive prices.

  • Right to be heard at appropriate forums

  • Right to seek redressal against unfair trade practices that are involved in exploitation of customers

  • Right to consumer awareness


Set out below are some of the Key Highlights of the New Act:



  • Enhancement of Pecuniary Jurisdiction:Revised pecuniary limits have been fixed under the New Act. Accordingly, the district forum can now entertain consumer complaints where the value of goods or services paid does not exceed Rs. 10,000,000/-. The State Commission can entertain disputes where such value exceeds Rs.10, 000,000/- but does not exceed Rs.100,000,000/-, and the National Commission can exercise jurisdiction where such value exceeds Rs. 100,000,000/-

  • E-Filing of Complaints: The New Act provides flexibility to the consumer to file complaints with the jurisdictional consumer forum located at the place of residence or work of the consumer. This is unlike the current practice of filing it at the place of purchase or where the seller has its registered office address. The New Act also contains enabling provisions for consumers to file complaints electronically and for hearing and/or examining parties through video-conferencing. This is aimed to provide procedural ease and reduce inconvenience and harassment for the consumers.

  • Establishment of Central Consumer Protection Authority: The New Act proposes the establishment of a regulatory authority known as the Central Consumer Protection Authority (CCPA), with wide powers of enforcement. The CCPA will have an investigation wing, headed by a Director-General, which may conduct inquiry or investigation into consumer law violations. The CCPA has been granted wide powers to take suo-moto actions, recall products, order reimbursement of the price of goods/services, cancel licenses and file class action suits, if a consumer complaint affects more than 1 (one) individual.

  • Product Liability & Penal Consequences: The New Act has introduced the concept of product liability and brings within its scope, the product manufacturer, product service provider and product seller, for any claim for compensation. The term 'product seller' is defined to include a person who is involved in placing the product for a commercial purpose and as such would include e-commerce platforms as well. The defense that e-commerce platforms merely act as 'platforms' or 'aggregators' will not be accepted. There are increased liability risks for manufacturers as compared to product service providers and product sellers, considering that under the New Act, manufacturers will be liable in product liability action even where he proves that he was not negligent or fraudulent in making the express warranty of a product. Certain exceptions have been provided under the New Act from liability claims, such as, that the product seller will not be liable where the product has been misused, altered or modified.

  • Covers E-Commerce Transactions: The New Act has widened the definition of 'consumer'. The definition now includes any person who buys any goods, whether through offline or online transactions, electronic means, teleshopping, direct selling or multi-level marketing. The earlier Act did not specifically include e-commerce transactions.

  • Unfair Trade Practices: The New Act introduces a specific broad definition of Unfair Trade Practices, which also includes sharing of personal information given by the consumer in confidence, unless such disclosure is made in accordance with the provisions of any other law.

  • Penalties for Misleading Advertisement:The CCPA may impose a penalty of up to Rs.1, 000,000/- on a manufacturer or an endorser, for a false or misleading advertisement. The CCPA may also sentence them to imprisonment for up to 2 (two) years for the same. In case of a subsequent offence, the fine may extend to Rs. 5,000,000/- and imprisonment of up to 5 (five) years. The CCPA can also prohibit the endorser of a misleading advertisement from endorsing that particular product or service for a period of up to 1 (one) year. For every subsequent offence, the period of prohibition may extend to 3 (three) years.


The New Act fixes liability on endorsers considering that there have been numerous instances in the recent past where consumers have fallen prey to unfair trade practices under the influence of celebrities acting as brand ambassadors. In such cases, it becomes important for the endorser to take the onus and exercise due diligence to verify the veracity of the claims made in the advertisement to refute liability claims.

  • Provision for Alternate Dispute Resolution: The New Act provides for mediation as an Alternate Dispute Resolution mechanism, making the process of dispute adjudication simpler and quicker. This will help with the speedier resolution of disputes and reduce pressure on consumer courts, who already have numerous cases pending before them.


With the New Act all set to become the law, gone are the days, where the 'consumer was asked to beware'. A consumer is now the one who assumes to be treated like a King. Hence, it is important for consumer driven businesses (such as, retail, e-commerce) to be mindful of the changes in the legal landscape and have robust policies dealing with consumer redressal in place. Consumer driven businesses must also strive to take extra precautions against unfair trade practices and unethical business practices.

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Oct 2020
24th Oct 2020

A Heinous crime “RAPE”

The crime of rape has shaken the whole of India and this crime has emerged as an epidemic for Indian society. Several attempts are being made by the state and Indian legislation to stop this crime. In society, the crime of rape has come as a curse; efforts are being made to stop rape at various social levels. Not only adult women are victimized by crime like rape, but also the young girls are suffering from heinous crime like rape.

In the case of Shri Budhwar Gautam vs. Shubhra Chakravarti AIR 1996 SC 922, it has been held by the Supreme Court that the crime of rape is a crime against human rights. This violates the right to live. 

There are two sections in the Indian Penal Code regarding the crime of rape. Section 375 and Section 376 of IPC, 1860.

 Section 375 of the Indian Penal Code in relation to the definition of rape. This section provides a clear explanation of rape. Rape is a crime in which the consent of the woman with intercourse is questioned. Sexual intercourse is also defined under this section. At one time, penetration of the penis into the vagina was considered sexual intercourse, but changes were made to this definition over time.

In 2013, revolutionary amendments have been made under this section. Different definition of sexual intercourse is given. Sexual intercourse under Section 375 of the Indian Penal Code can be done as follows- A man -

(a) - enters his penis at any stage in a woman's vagina, her mouth, urinary tract or anus, or by any of his Provides with another person or

(b) - any such object in a woman's vagina, urinary tract, or anus, it covers any part of the body which is not gender to any extent or it does so with any other person Provides or

(C) - Hand wares any part of a woman's body in such a way that a woman's vagina, anus, urinary tract can be penetrated into any part of the body or does it with any other person or

(d)  - He puts his mouth on a woman's vagina, anus, urinary tract or does it with her or any other person.

Any such act is subject to seven conditions, which are mentioned under Section 375 of the Penal Code, and then it is believed that he has committed rape. From the above definition of sexual intercourse, it appears that the definition of sexual intercourse within the penal code has been greatly expanded in favor of the woman and putting the vagina to the mouth or even the finger will be considered rape but having such sexual intercourse is also a crime.

Those seven circumstances are-

  1. Against the will of the woman.

  2. Without the consent of the woman.

  3. The consent of a woman when her consent is obtained by putting her or any person with whom she is interested, in fear of death or injury.

  4. With the consent of the woman when the man realizes that she is not his husband and has given the consent that she believes that there is another man with whom she is lawfully married or believes to be married.

  5. When the woman gives her consent, at the time of giving such consent, she talks about what she consents to due to maladministration or abstinence, or because of a noun or unhealthy substance given by the man personally through someone else. , Is unable to understand the nature and consequences.

  6. With or without the consent of the woman when she is under 18 years of age.

  7. When a woman is unable to communicate consent. When it is sexual intercourse with a woman according to the definition of sexual intercourse given above in seven circumstances, the crime of rape is committed.


In relation to the crime of rape, the definition is very broad because not only consent is not considered a crime, but how this consent is taken has also been taken into consideration. This consent intimidation, intoxication. If it is taken from a woman or a deformed mind or from a woman unable to give consent, then sexual intercourse with such consent becomes rape.

In relation to a minor, sexual intercourse with a minor woman who is less than 18 years of age is considered rape. Even if she had consented to sexual intercourse, she had clearly given such consent. Even after such consent. The accused shall be deemed guilty of rape if he has intercourse with a woman below 18 years of age.

In this case Lalta Prasad vs State of Madhya Pradesh AIR 1997 SC 1276 has this case. There was no evidence that the girl was under 16 years of age, she had sexual intercourse without her consent and hence it was held that the accused was not guilty of rape. What evidence can there be in the crime of rape? There is a lack of direct witness in the crime of rape. The court has to take utmost care regarding the evidence in the rape case and carefully evaluate, analyze the case. Injured marks on the genitals of a woman aggrieved by rape, blood stains on her clothes, and then informing her parents immediately after the incident, some facts which are helpful in proving the crime of rape, hence the decision Time these facts should be kept in mind.

In the case of Bhupendra Sharma v. State of Himachal Pradesh, the Supreme Court has also determined that evidence of rape victim can be sufficient in rape cases, her affirmation is not necessary.

Similarly, in the case of Sudhanshu Shekhar Sahu v. State of Orissa AIR 2003 AC 4684, it has been said by the Supreme Court that the accused can be convicted only on the evidence of the rape victim, but she is safe and reliable. FIR in rape is a prima facie first information report in rape cases required to be filed immediately or there is no strict rule. Due to the fact that they can be pending, only on the basis of delay, the prosecution case cannot be considered untrustworthy.

In Dildar Singh vs State of Punjab. In this, student was raped by a teacher in his charge. She did not tell this thing to anyone due to fear, but when she came to know that she became pregnant, after 3 months, she was forced to tell the whole incident to her mother. Thus after 3 months the First Information Report was filed. The Supreme Court considered it excusable. The rape FIR can be delayed for some reason and the court may consider it a reasonable cause and the delay can be ignored.

Rape of wife. In some recent cases, the topic of rape of wife has also come out. In some cases the Supreme Court has also considered the registration of rape FIR by the wife as valid, but in later cases it was overturned. The second exception to section 375 states that any woman who is the wife of a man. If she is maltreated by her husband or is subjected to some other sexual act, then in such a situation she cannot bring a case of rape.

 If she is less than 15 years of age, then in such a situation she can bring a rape case and if she was mated to a woman younger than 15 years and had any of the following seven circumstances then it would have become a crime of rape. .

The accused of rape will be male only. The first word under Section 375 of the Indian Penal Code is male. Prosecution of rape on a woman cannot be conducted by making a man aggrieved because the word male is used at the beginning of the definition of rape.

Punishment for Rape

Section 376 provided for seven years of jail term to life imprisonment to whoever commits the offence of rape.

Latest Amendments in Rape laws

It is most important to discuss here that the nationwide public outcry, in 2012, popularly known as Nirbhaya Case following the December 16 gang rape and murder in Delhi, led to the passing of the Criminal Law (Amendment) Act in 2013 which widened the definition of rape and made punishment more stringent.



Parliament made the amendments on the recommendation of the Justice J.S. Verma Committee, which was constituted to re-look the criminal laws in the country and recommend changes.

The 2013 Act, which came into effect on April 2, 2013, increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause death of the victim or leaves her in a vegetative state.

It also created new offences, such as use of criminal force on a woman with intent to disrobe, voyeurism and stalking.

The punishment for gang rape was increased to 20 years to life imprisonment from the earlier 10 years to life imprisonment.

In January 2018, an eight-year-old girl in Rasana village near Kathua in Jammu and Kashmir was abducted, raped and murdered by a group of men. The news of the shocking act led to nationwide protests and calls for harsher punishment.

This led to the passing of the Criminal Law (Amendment) Act, 2018 which for the first time put death penalty as a possible punishment for rape of a girl under 12 years; the minimum punishment is 20 years in jail.

Another new section was also inserted in the IPC to specifically deal with rape on a girl below 16 years. The provision made the offence punishable with minimum imprisonment of 20 years which may extend to imprisonment for life.

The minimum jail term for rape, which has remained unchanged since the introduction of the IPC in 1860, was increased from seven to 10 years.

The Supreme Court has ruled that sex on the pretext of marriage is rape and a blow to the honour of a woman.

A bench of Justices L Nageswara Rao and MR Shah in their recent judgement observed that rape offends a woman's dignity and esteem, and if for the fact the victim and her rapist have already settled in their lives and taking care of their families, could not be considered a ground to have the crime be null and void. 

The court observed that such incidents were on the rise in modern society. 

"It tantamounts to a serious blow to the supreme honour of a woman and offends both her esteem and dignity."

The judgement came on a case registered by a woman accusing a Chhattisgarh-based doctor of raping her in 2013. The woman, a resident of Koni, Bilaspur, was familiar with the accused since 2009 and had a love affair. 

The accused had promised to marry her and their families were in the know of this. 

The accused was, however, engaged to another woman while he had the affair with the victim. He later broke his promise to the victim and married the other woman with whom he was engaged. An FIR was lodged against the accused and he was convicted of rape. 

our Top criminal lawyers can help you in providing the top quality legal services that you expect. We represent our clients all over India in general and Delhi-NCR in particular.
17th Oct 2020

VICTIMS OF DOMESTIC VIOLENCE HAVE A RIGHT TO RESIDENCE AT SHARED HOUSEHOLD OWNED BY IN-LAWS

Women who have been thrown out of their in-laws' house due to a domestic dispute can now claim the right of residence in the “shared household” even if the house is owned by the in-laws.

In a judgment that would bring relief to many victims of domestic violence, a three-judge bench of the Supreme Court held that “shared household”, under the protection of women from Domestic Violence Act 2005, can also be a house owned by the joint family or any relative of the husband, provided that the woman has lived in that house after her marriage as a long-term resident “in a domestic relationship”.

“In the event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household,” held the bench of Justices Ashok Bhushan, R Subhash Reddy and MR Shah.

This judgment would come as a massive relief to women who have been thrown out of the matrimonial home and denied relief on grounds that the house is the sole property of their father-in-law or mother-in-law.

The bench, in its 150-page verdict, observed that “domestic violence in this country is rampant and several women encounter violence in some form or the other almost every day, however, it is the least reported form of cruel behaviour.”



The bench also observed that the Domestic Violence Act 2005 was a “step to secure social justice by legislation”

The Act 2005 was enacted to give a higher right in favour of the woman. The Act 2005 has been enacted to provide for more effective protection of the rights of the woman who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act,” said the court.

The judgment over-ruled a 2007 judgment in Tarun Batra case of a two-judge bench of the apex court, which had held that “shared household” is limited to a house that is owned or rented by her husband, or by the joint family of which the husband is a member.

Conditions on woman's right of residence



  1. The bench has clarified that whether or not the residence is in fact a “shared residence” would be determined by the family court where the domestic violence case is being heard.



  2. The court additionally said that “the right to residence under Section 19 is not an indefeasible right of residence in the shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law.”



  3. “The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in the application under Section 12 of Act, 2005 or in any civil proceedings, the court has to balance the rights of both the parties” the court has added.



  4. Relief for the daughter-in-law would also depend on whether the allegation of domestic violence can be proved in the trial.



  5. “It is to be observed that in a case any relief available under Sections 18, 19, 20, 21 and 22 is sought by the aggrieved person in any legal proceedings before a civil court, family court or a criminal court including the residence order, the aggrieved person has to satisfy by leading evidence that domestic violence has taken place and only on the basis of the evidence led on being satisfied that the domestic violence has taken place, the relief available under Section 19 can be granted...” the court said.



Case which led to the judgment

The observations have been passed in a case involving a domestic dispute where a couple married in 1995 and started living in the house owned by the father-in-law. In 2004, a separate kitchen was created on the first floor of the house where the husband and wife lived, while the in-laws lived on the ground floor. In 2014, the husband started living in the guest room on the ground floor, while the wife and children lived on the first floor.

The husband had initiated divorce proceedings in 2014, while the father-in-law filed a plea of injunction, to bar the woman from living in his house.

The trial court had passed an order in favour of the in-laws, which was overturned by the Delhi High court, which held that the woman did have the legal right to claim the right of residence.

The father-in-law then moved the apex court to decide on the legal issues of whether the daughter-in-law could seek rights of residence in his house.

The Apex court has now held that the trial court decision was incorrect, and has directed the trial court to re-adjudicate the matter.

“The claim of the defendant that suit property is shared household and she has right to reside in the house ought to have been considered by the Trial Court and non-consideration of the claim/defense is nothing but defeating the right, which is protected by Act, 2005” the SC has said.

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Sep 2020
28th Sep 2020

How succession is decided for the property of a Hindu woman who is deceased without a will

The Hindu Succession Act 1956 does not discriminate between Hindu men and Hindu women regarding any form of succession. This method is based on natural affection and scientific approach. It has been built by the Parliament of India on the basis of social harmony and equality. Under this Act, there is a separate scientific way of dividing the property of Hindu man in succession which is described under section 8 of this act.

Under the Hindu Succession Act 1956, the way a man is given rights in relation to succession to property. Similarly, if a Hindu woman is an intestate deceased, then in such a situation the rules of succession of her property have been determined under Section 15 of this Act and the order of heirs of the property of Hindu woman is mentioned under Section 16.

Section 15 of Hindu Succession Act, 1956

This is the second most important section of this Act. Under this section simple rules regarding succession of Hindu women are mentioned. After the passage of the Hindu Succession Act 1956, a Hindu woman has three types of assets.

  • Property received in succession from father or mother

  • Property received in succession from husband or father-in-law

  • All other types of property - as is the general rule, any Hindu person shall inherit the property received by him in succession and the property acquired by him.


He can devise his property anywhere. No law or rule prevents a person from making any will in relation to his property. Any Hindu man or woman can inherit his property anywhere and the offspring of a Hindu man cannot claim that he is entitled to inherit his property because any Hindu man or woman has absolute right. That he will devise his property anywhere. But if the Hindu man or woman does not die in respect of his property except by a will then the provisions of the Hindu Succession Act 1956 apply. Under these provisions separate rules have been prescribed for male and separate rules have been prescribed for Hindu woman. Under Section 15 of the Succession Act 1956, the rules for the right to property of a Hindu woman are described.

Under Section 30 of this Act, any Hindu woman can bequeath her property anywhere but she does not leave any will, then in such a situation, according to section 15, the succession of her property is decided. According to Section 15 of the Hindu Succession Act 1956, in the event of death of a Hindu woman, her property is devolved to the following persons-

1)  Son, daughter and husband

2)  Husband's heirs

3)  Mother and father

4)  To the heirs of the father

5)  The order of succession of the property of any Hindu woman to the heirs of the mother is the same as the order of succession to the property of a Hindu male.

The property is first devolved to son, daughter and husband. If the dying Hindu woman does not have a son, daughter and husband, in such a situation the property is devolved to the heirs of the husband. If the husband's heir is also not available, then the property of the dying Hindu woman is devolved to her mother and father. If the mother and father are also not available, then the fourth heir is the heir to the father. If the father does not have an heir, in such a situation the fifth heir is the heir of the mother.



Certain features under this section, if any property is inherited by a Hindu woman from her parents, in the absence of the son or daughter of the deceased, the above heirs will be devolved to the heirs of the father and not to the order. Similarly, property received from husband or father-in-law will be devolved to the heirs of the husband if there is no son or daughter of the deceased. In this section, an attempt has been made to judge the property from which people get the property. The first succession is that of the son and daughters. If the son and daughter are not available, in such a situation, the property received in succession is devolved to those people from where that property is received by a Hindu woman.

For example, a Hindu woman has received a piece of land in succession from her father-in-law, now no child of this Hindu woman is available and there is also no objection to the child, in such a situation, the property obtained from the father-in-law does not belong to the husband. In the event of in-laws heirs will be devolved.

In the event of a Hindu woman receiving the property from the husband, the heirs of the husband will be devolved.

In the event of inheritance from her father, the heirs of the father will be devolved, but if a property is acquired by a dying Hindu woman herself, the rule for her property in such a situation would be that first of all the property. Succession will be devolved. After that, the second succession will be devolved, followed by the third answer will be devolved to the officers. The first heirs exclude the second heirs.

Under this Act, a Hindu woman's son and daughters mean the son and daughter received from her womb and the sons and daughters adopted by her husband. If a Hindu woman has 2 sons and their two fathers are different, in such a situation, both her sons will get the property of the Hindu woman. This clause does not apply in such a situation if her step-son means that if her husband has given birth to a son or daughter from another woman. Under the Hindu Adoption Act, when a husband or wife accepts an adoption, the wife also agrees in such a situation, if a Hindu man has adopted a son, then that adopted son will have the same inheritance in the property of the Hindu woman. Who has a son born from his womb.

In the case of Laxman Singh v. Krupa Singh AIR 1986 Supreme Court 1616, it has been pointed out that as far as the step-son is concerned, he does not fall under the extension of Section 15 (1) (a). In the case of Kampo Bai v. Deviram 1982 Revenue Decision 14 Madhya Pradesh, it has been said that under section (a) of section 15 (1), the reference to the daughters and daughters of the daughters is from their own daughters. Her husband's other wife's sons and daughters are not included. Step sons will not come under the subdivision and step daughters will also not come.

The heir of a Hindu woman is firstly her sons, daughters and husbands but here the situation of husband is entangled. That is, sub-section 2 of section 15 provides that if a Hindu woman has inherited the property and has no son or daughter, then in such a situation and the property is devolved to the heirs of the same person. Property received in succession. For example if a woman inherits any property from the father in succession. The woman has no children and does not adopt any adoptions and dies intestate. Now in such a situation, the inheritance which she received will be devolved to the heirs of her father and not to her husband.  It simply means that the heirs of the party from whom the property is received in succession will be devolved only.

In Radhika Mehta v. Anurag Mehta 1994 (5) Supreme Court 761 it is stated that if the intestate Hindu woman had inherited the property from her mother and maternal grandfather, then the daughter of the deceased would inherit it and her husband in section 15 (2 ) Shall not acquire property in succession as per the provision of (a). According to the nature of this section, the husband will not inherit the property left by his wife in the condition where his wife held the property from her father. The husband will inherit the property in the same circumstances in which the property was either given by him to the wife or was earned by the wife herself.

In this article we have discussed the succession of property under Hindu Succession Act, 1956. If you have any query or you want an experienced civil lawyer for your property matter; call us on our number reflecting on our website or fill the query form. Our team of best civil lawyers will guide you. Our team of civil lawyers has vast experience and professionalism. They spend ample of time while researching, drafting. Our law firm has a team of experienced civil lawyers that works together to get fruitful results and decision of the court in their favor. Our Law firm is well known for handling civil litigation. Our civil lawyers provide best legal solutions to resolve the client’s problems. That is why Legalmax is distinguished from other legal firms.
22nd Sep 2020

Laws Relating to Contempt of Court

The concept of contempt of court is several centuries old. In England, it is a common law principle that seeks to protect the judicial power of the king, initially exercised by him, and later by a panel of judges who acted in his name. Violation of the judges’ orders was considered an affront to the king himself. Over time, any kind of disobedience to judges, or obstruction of the implementation of their directives, or comments and actions that showed disrespect towards them came to be punishable.

The Contempt of Courts Act, 1971 is based on the recommendations made by the Sanyal Committee and the Joint Select Committee.
According to the Contempt of Court Act, 1971 contempt of court means showing disrespect for the dignity and rights of a court. The Contempt of Courts Act, 1971 is intended to maintain the dignity and importance of the Court.



The powers associated with contempt help judges to discharge their duties without fear, partiality and feeling.

What are the kinds of contempt of court?

The law codifying contempt classifies it as civil and criminal.

  1. Civil contempt is fairly simple. It is committed when someone willfully disobeys a court order, or willfully breaches an undertaking given to court.

  2. Criminal contempt is more complex. It consists of three forms:


(a) Words, written or spoken, signs and actions that “scandalise” or “tend to scandalise” or “lower” or “tends to lower” the authority of any court

(b) Prejudices or interferes with any judicial proceeding and

(c) Interferes with or obstructs the administration of justice.

Constitutional Background:

Article 129: empowers the Supreme Court to punish for contempt of its own.

Article 142 (2): This Article enables the Supreme Court to investigate and punish any person charged with contempt.

Article 215: Enables the High Courts to punish themselves for contempt.

Other issues related to contempt:

Article 19 of the Constitution provides freedom of speech to every citizen of India, but the Contempt of Courts Act, 1971 has curbed against the functioning of the court.

The law is very subjective, so the penalty of contempt can be used by the court to suppress the voice of the person who criticizes it.

Provision of penalty for contempt of court:

The Supreme Court and the High Court have the power to punish for contempt of court. This penalty can be a simple imprisonment of six months or a fine of up to Rs 2000 or both.

In 1991, the Supreme Court ruled that it had the power to punish not only himself but also in contempt cases of High Courts, Subordinate Courts and Tribunals all over the country.

The High Courts have been empowered to punish for contempt of subordinate courts under Section 10 of the Contempt of Courts Act, 1971.

In a recent judgment Supreme Court held that Ranbaxy promoters Malvinder and Shivinder Singh guilty of contempt for violating its order that had asked them not to divest their shares in Fortis Healthcare Limited.  

A bench, comprising Chief Justice Ranjan Gogoi and Justice Deepak Gupta, held them guilty of contempt of court and said that they had violated its earlier order by which the sale of their controlling stakes in Fortis Group to Malaysian firm IHH Healthcare was put on hold.

 The Japanese firm had filed a contempt petition against them, alleging that execution of their arbitral award had been in jeopardy as the Singh brothers disposed of their controlling stakes in the Fortis Group to the Malaysian firm.

Even if a Central Government or a State Government refuses to comply with or execute the order passed by the Hon’ble High Court, then in that case, the aggrieved person can file a contempt petition for contempt of Court in the high Court against the concerned department and officials. You have to hire an experienced lawyer having deep knowledge of the contempt proceedings.



In a recent decision of the Supreme Court in Re Vijay Kurle decided on 27th April, 2020 in Suo-Moto Contempt Petition (Criminal) No.2 of 2019 it has been reiterated that “Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment for contempt itself…section 15 is not substantive provision conferring contempt jurisdiction and therefore is only a procedural section especially in so far as Suo-Moto contempt are concerned”.

In Para 30 of the aforesaid decision, a three judges bench decision of the Supreme Court in Pallav Sheth versus Custodian was perfunctorily dealt with bypassed by stating:

“this court in that case was only dealing with question whether contempt can be initiated after the limitation prescribed in the contempt of courts Act has expired and the observation made therein have to be read in that context only…. It, however, went on to hold that providing the question of punishment or a period of limitation would not mean that the powers of the court under Article 129 have stultified or abrogated. Without commenting one way or the other on Pallav Sheth’s case (Supra) it is clear that the same has not dealt with power of this court to issue Suo-Moto notice of contempt”.

In Para 31 the Supreme Court said that “in view of the above discussion we are clearly of the view that the powers of Supreme Court to initiate contempt are not in any manner limited by the provision of the Act”.

The 1971 Act is a composite legislation pertaining to High Courts and the Supreme Courts both. Section 15 and 19 of the Act specifically mentions the Supreme Court and prescribes the manner of taking cognizance and right to appeal.

Legalmax’s Supreme Court and High Court lawyers are well experienced and keep their knowledge updated with the recent judgments and amendments in the laws. Our lawyers have exceptional skills and knowledge to handle contempt cases. Anyone can contact us directly through mail or by calling us on the number reflecting on our website for his/her contempt matter. We have a team of best lawyers representing clients across the country.

 

 

 

 

 

 
6th Sep 2020

HIGHER STUDIES OF DOCTORS CANNOT BE DETERRED BY ANYONE, DELHI HC GRANT RELIEF TO DNB GENERAL MEDICINE & ORTHOPEDIC SURGEON ASPIRANT.

The Delhi High Court has allowed the plea filed by Legalmax's Advocate Mr. Shakti Narayanan. Hon'ble High Court allowed this plea of the doctors and has issued directions to the National Board of Examination to freeze the seats allotted to the doctors and also directed NBE not to carry forward the allotted DNB seats of the doctors in second round of counseling so that they can pursue DNB General Medicine & Orthopedic Surgeon (Broad Specialty) course respectively.
The observation was made by the Delhi bench of Hon’ble Justice Mr. Jayant Nath during a hearing of the Writ Petition filed by the doctors seeking directions from the court to direct Medical Superintendent of their department to give study leave and relieving order and further direction for National Board of Examination to freeze their DNB allotted seats.
Via the petition, the Petitioners submitted and informed the court that they are MBBS doctors working on regular basis in department of Aruna Asif Ali Govt. Hospital, 5-Rajpur Road, Delhi-54 under the Ministry of Health and Family Welfare in the State of Delhi which is a Government organization. Since they wanted to pursue Post Graduate Course in Medical Service, they participated in the competitive examination National Eligibility Cum Entrance Test-PG 2020 and ultimately, they had been selected by National Board Of Examination for admission to the course of Post Graduate in DNB sponsored General Medicine (Broad Specialty) & Orthopedic Surgery respectively. Accordingly, the allotment order was given by the National Board of Examinations, according to which, the petitioner was asked to report to the allotted Institution on 31.08.2020.
In anticipation of such a selection, the petitioners had written an application to the Medical Superintendent of their department to provide them relieving order and study leave for joining their respective courses. However, it was not accepted. As a result, the petitioners were not able to join the allotted Institution till date for the admission to DNB course, for which they were selected. Therefore, in this regard, they had then mailed an application to the National Board of Examination to extend their joining by six weeks but the same was also rejected by National Board of Examination.
Aggrieved, the petitioners had moved the court seeking relief. In response to the petition, Advocate Shakti Narayanan contending on behalf of the petitioners submitted that the Petitioners had taken due permission and No Objection Certificate from the Competent Authority before the counseling and it was clearly mentioned in the No Objection Certificate that if they are allotted a seat during the sponsored DNB counseling 2020, they shall be relieved from the parent department for the duration of Post-Graduation Course and shall also be given the salary as per rules from the parent department. However, contrary to the assurance and the No Objection Certificate the Competent Authority has not so far relieved the Petitioners as a result of which they are unable to join their Merit Sponsored DNB seats. Advocate Mr. Shakti Narayanan argued the matter and added that the Petitioners are estopped by National Board of Examination from their right to join Merit Sponsored DNB seats despite the fact that the Petitioners have already paid the course fee of Rs.1,25,000/-(Rupees one lakh twenty five thousand only) with a view to freeze their allotted seats.
Learned Advocate Mr. Shakti Narayanan submitted that any further delay by the Competent Authority in sanctioning the study leave and relieving the Petitioners, shall result in the Petitioners losing their seat in the PG Course at the respective hospitals.
In response to the petition, the Counsel contending on behalf of National Board of Examination submits that no such kind of NOC has ever given to the petitioners.
After hearing the submissions from both sides, Hon’ble Justice Mr. Jayant Nath noted that chance of studying higher specialty course comes after a great deal of struggle. Hon’ble Justice noted the submission of the petitioners’ counsel that the DNB sponsored training will be another crown to Petitioners. The Counsel Mr. Shakti Narayanan further added that this Petition is an illustration of Petitioners battling for their right. Petitioners are MBBS doctors serving the humanity. He further added that in the field of Medicine, we need more qualified people with updation that alone will help the Society at large, as they can bring so many successes in the field of Medicine for the benefit of humanity.
Further, the Hon’ble Justice Mr. Jayant Nath while disposing of the petition issued a set of directions to the National Board of Examination to freeze the DNB seats allotted to the Petitioners and also directed NBE not to carry forward the allotted seats of the Petitioners in second round of counseling. Hon’ble Justice further directs the Medical Superintendent of Aruna Asif Ali Govt. Hospital who is the first respondent herein to allow study leave of the Petitioners and relieve them to join their sponsored DNB allotted


Jul 2020
25th Jul 2020

Maintenance Right of A Woman under Section 125 of CrPC

Marital disputes are increasing in India and cases like dowry, divorce, maintenance, domestic violence are increasing in courts. Here we will discuss about the maintenance cases. The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. It has been observed that whenever a woman approaches the court against her husband, she makes a maintenance claim. It is the responsibility of the husband to take care of his wife and children and even in the event of a dispute, the court orders the husband to give interim maintenance to the wife several times. Under Section 125 of the Criminal Procedure Code 1973, the wife claims maintenance from her.

Although this law provides for the maintenance of dependents including wife, children, parents, but here we will let you know here the topic of maintenance between husband and wife. Indian law entrusts the person with the responsibility of the maintenance of his wife, children and elderly parents. There are many decisions of the courts in relation to maintenance, in which a person is called social responsibility for the maintenance of his dependents.

Who will be entitled to maintenance?

Under Section 125 of the Criminal Procedure Code, the following people are eligible to receive maintenance.

  1. Wife who is unable to maintain herself.

  2. Minor child who is unable to maintain, whether the child is a religious or a transgressor or married or unmarried. If a child is unable to maintain himself due to any physical or mental disability or due to damage.

  3. Parents of the person who are unable to maintain themselves.


Is Strict Proof of Marriage  required u/Section 125 CrPC for claiming Maintenance?

Supreme Court in Kamala and ors. v. M.R. Mohan Kumar

The Supreme Court in this recent case has reiterated the settled principle of law that unlike other matrimonial proceedings, a strict proof of marriage is not essential in claim of maintenance under Section 125 of CrPC and that when the parties live together as husband and wife, there is a presumption that they are legally married couple for claim of maintenance under Section 125 CrPC.

The Two-Judge Bench of the Supreme Court in view of the evidence and material available on record allowed the appeal holding that there was a valid marriage between the parties and moreover a strict proof of marriage was not a pre-requisite for claiming maintenance under Section 125 of CrPC

According to Section 125 of the Code of Criminal Procedure 1973 provides for the maintenance of a wife that (1) if a person with adequate means: (a) his wife, who is unable to maintain himself, or (b) his religion or wrongdoing Whether it is married or not to a minor child, who is unable to take care of himself, then take care of him.



The court may, while pending proceedings in relation to the monthly allowance for maintenance under this sub-section, direct such person to interim maintenance of his wife or child as the court may deem fit, the monthly allowance and such expenses of the proceedings to person to whom the court should direct from time to time.

Provided further that any application of monthly allowance and proceedings for interim maintenance under the second proviso shall be disposed of within such time as possible, sixty days from the date of service of such person. Under "wife" there is also a woman whose husband has divorced her or who has divorced her husband and who has not remarried.

(2) Any such allowance for maintenance or interim maintenance and from the date of the order of expenditure for the proceedings or, if such order is made, from the date of application for maintenance or interim maintenance and expenses of the action, as the case may be. Will be payable

(3) If any person who has been ordered fails without sufficient reason to comply with that order, then for each breach of that order, any such magistrate shall issue a warrant for the levy of such amount to be levied in such manner. Such person as is provided for levying fines and after the execution of that warrant the whole allowance for unpaid maintenance or interim maintenance as the case may be and the expenditure of the proceeding or any part thereof are ordered to be paid. The court may serve a sentence of imprisonment up to the time of repayment. Provided that no warrant shall be issued for the recovery of the amount due under this section until the application has been made to the court for the levy of that amount within a period of one year from the date on which it became due. Provided further that if such a person proposes to maintain maintenance on the condition that his wife stays with him and she refuses to live with the husband, the court may consider any grounds for the alleged refusal by him and such establishment Even if done, she may make an order under this section if it is resolved that there is an equitable basis for making such order. If the husband has married another woman or has made the other woman his mistress, this would be considered to be a justifiable basis for his wife's refusal to live with him. The court may quash the order on the proviso that a wife, in whose favor an order is made under this section, refuses to live with her husband without sufficient cause or they are estranged from mutual consent.

The excuse taken by the husbands to avoid maintenance:-

If the wife is doing a job, it is often argued on behalf of the husband, because Section 125 of the Criminal Procedure Code 1973 states that the husband will provide sustenance to the wife who is unable to maintain herself. If the wife does a job, then in the maintenance case, the husband takes advantage that the wife is not incapable, as stated in the Act. The husband side tries to base the wife's earnings. There are some cases in which the husband has taken the plea that the wife is capable of earning herself, so her maintenance application should be rejected.

The Supreme Court has an important decision in this matter. The judgment of Shailaja and others vs Khubanna SC 2017 states that the wife is capable of earning and the wife is earning, these two things are different. The wife does not lose her support simply because she is able to earn.

In the case of Rajesh v. Sunita and others, the Punjab and Haryana High Court held that it is the ultimate duty of a husband to take care of his wife and children, whether he has to beg, borrow or steal. In this case, the husband had not paid the maintenance to his wife for almost four years, after which the court sentenced him to 12 months. Apart from this, if it is proved on the part of the husband that the wife remains separated from him without any reason, then the courts while listening to the wife's application for maintenance, consider this fact.

The High Court thus, while making reference to Apex Court’s judgment in Sunita Kachwaha and ors. V. Anil Kachwaha, noted that even if the wife was earning some amount that may not be a reason to reject her application for maintenance outright.

It was also stated by the High Court that as held by the Apex Court in a catena of decisions, the concept of sustenance does not necessarily mean to live the life in penury and roam around for basic maintenance. The wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband with respect and dignity.

That the husband is not entitled to contend that he is not prepared to pay any maintenance and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the minor child, it can only be on legally permissible reasons and not on the strength of a memo filed by the husband.

Can Husband Claim Maintenance from wife?

Yes the husband can claim maintenance from the wife. The Courts have time and again remarked that maintenance is to be paid to husband only if he is incapable or handicap. In a recent case of Nivya V.M. v. Shivaprasad N.K., the Kerala High Court dismissed husband’s claim for maintenance from his wife holding that maintenance under Section 24 of Hindu Marriage Act, 1955 is to be paid to the husband only when he is able to prove any incapability or handicap.

The Court also observed that in absence of such circumstances as enumerated above, endowing maintenance on the husband would only promote idleness.

The Court also remarked that a husband seeking maintenance from the wife can be treated only as exceptional case as normally he has got the liability or obligation to maintain the wife and vice versa is only exceptional.

Steps involved in Maintenance case:-

  1. Hire an expert and experienced lawyer and file a maintenance petition/application before the concerned Family Court containing the facts of the case stating the circumstances on which the wife is claiming maintenance.

  2. The Ld. Judge of the Family court scrutinizes the petition and issues notice/summon to the husband against whom the wife has filed the Maintenance petition.

  3. The parties are directed to appear before the Court and Family court first try to reconcile/mediate them.

  4. If the reconciliation or mediation proceeding are successful; then the matter stands settled but if the mediation fails, then the Family court proceeds with the maintenance case on merits.

  5. The Family directs the opposite party to file a reply to the petition. The Family Court further asks both the parties to file a detailed income affidavit so that it can get information of income and liabilities of both the parties.

  6. The petitioner (almost the wife in every case) is directed to file the rejoinder to the reply filed by the opposite party/husband. At this stage the court decides the interim maintenance application of the petitioner.

  7. The court thus frames the issues involved in the case and ask both the parties to file evidence by way of affidavit.

  8. The petitioner is directed to lead its evidence by filing the relevant the relevant document, and by summoning all its witnesses.

  9. Thereafter the respondent/opposite party is directed to lead its evidence by filing the relevant the relevant document, and by summoning all its witnesses.

  10. The court orders for the final arguments and after hearing the arguments from the both the parties; the matter is decided by the court.

  11. The court finally passes the order/judgment where it may either dismiss the petition or allow the petition and directs the other party/respondent to pay monthly maintenance as directed by the court.


Our Law Firm deals with varieties of maintenance cases and complex family laws issues. Our integrity and diligence makes winning combination. When you are choosing the best maintenance lawyer or family law lawyer, in this situation you can completely rely on our Legal Firm.
7th Jul 2020

Laws Relating to Domestic Violence

Even in the twenty-first century, there has been no decrease in crimes against women in India. The agony is that far out, women become victims of crimes even in the walls of their homes. Domestic violence cases against women are increasing day by day. Prior to the year 2005, women had the right to register criminal cases against domestic violence. In such cases, proceedings under Section 498A of the Indian Penal Code, 1860 were conducted. In 2005, the 'Protection of Women Suffering from Domestic Violence Act' was passed, in which many new rights were given to women. The purpose of section 498A is to punish the offender, whereas the purpose of the Domestic Violence Act is to provide the victim a place to live, alimony, etc.

What is domestic violence?

Domestic violence has been given a very detailed definition under Section 3 of the Protection of Women from Domestic Violence Act. The following functions fall under the definition of domestic violence:-

  1. Physical Violence - Any act or conduct which causes physical pain, health or body danger or harm to the health or physical development of a woman shall be considered as physical violence of the woman. Attack on women or use of criminal force will also be considered as physical violence. For example - beating the woman, not treating the sick woman, etc.

  2. Sexual Violence - Any act or conduct that is insulting or insulting the woman in a sexual way or harming the dignity of the woman will be considered as sexual violence. Forced sex and marital abuse will also come under the purview of sexual violence.

  3. Verbal and emotional violence - Insulting or ridiculing or deriding a woman and insulting or ridiculing her for not having a boy or child will be considered verbal and emotional violence. Abusing a woman, using abusive language or threatening to harm her relatives will also come under this purview.

  4. Economic misuse- Any financial or economic resource which the woman is legally entitled to or deprived of the woman or jointly owned property etc. will be considered as economic violence. If it is understood in easy terms, then selling any property in which the woman owns the property or to terminate the ownership of a woman will also come under this ambit. To deprive the woman of any such resource or facility or to obstruct the use of which the woman is entitled to use, such works also fall under this scope. For example- in a common household, a woman should be prevented from using water, electricity etc.

  5. Demand for dowry- Dowry or illegal demand of any valuable property also comes under the purview of domestic violence. In this regard, harming or harassing women also comes under the purview of domestic violence. In this regard, harassment of women with the view of threatening women relatives also comes under the purview of domestic violence.

  6. To cause mental or physical harm to a woman in any other way is also subject to domestic violence.


Who is the victim woman?

Any woman who is or has been in a domestic relationship with any man and is a victim of domestic violence can seek any solution or relief under this Act. Domestic relationship under the Act means that two persons who live or have lived in the same house and have relationship of blood relation, marriage or adoption will be considered as domestic relationship. A joint family who lives in the same house will also fall under this definition. Women living in a live-in relationship can also demand their rights under this act against domestic violence.



The Supreme Court has confirmed this in the 2010 D. Velusamy vs. D. Patchayammal case.

  1. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression `domestic relationship' includes not only the relationship of marriage but also a relationship `in the nature of marriage'. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage'. 

  2. In our opinion a `relationship in the nature of marriage' is akin to a common law marriage. Common law marriages require that although not being formally married:-


(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household' as defined in section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'.

Against whom can a complaint be filed?

Under the Act, the aggrieved woman can lodge a complaint against any adult man with whom she has been or is living in a domestic relationship. A married woman or a woman living in a live-in relationship can file a complaint against her husband or live-in partner or her relatives. Relatives include both male and female relatives. The person involved in the domestic violence is called the defendant or respondent.

Sandhya Wankhede vs. Manoj Bhimrao Wnakhede 9. that a wife or a female living in a relationship in the nature of marriage can, not only file a complaint against her husband or male partner but also against relatives of the husband or male partner. The term "relative" not having been defined in the Act, it could not be said that it excluded females from its operation.



By whom and who should register a complaint?

It is not only the victimized woman who has the right to complain of domestic violence. Any person can file a complaint on behalf of the victim. Apart from the victim woman, any of her relatives, social workers, NGO, neighbors, etc. can also file a complaint on behalf of the woman. It is not necessary to register a complaint that an incident of domestic violence has already taken place. If anyone fears that domestic violence can be done against a woman, then a complaint can also be filed.

The redressal process starts with the complaint. Complaints of domestic violence can be made before any police officer, protection officer, Magistrate and service provider. Service providers are those voluntary organizations and companies registered to act in the interest of women and registered as service providers under the Act. The service provider has the right to make a domestic violence report, conduct medical examination of the victim and provide shelter to the victim woman. Magistrate means any judicial magistrate first class under whose jurisdiction the person committing the violence resides or under whose jurisdiction the incident of violence has occurred. Conservation Officers are appointed under this Act and generally there is a Protection Officer in every district.

Relief available to the aggrieved under the Protection of Women from the Domestic Violence Act

  1. Section 17 Right to reside in a shared household.


The Supreme Court in S.R Batra vs. Taruna Batra held that as regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a `shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.

  1. Section 18 Protection Order – Section 18 of the Domestic Violence Act relates to protection order. In terms of Section 18 of the Act, intention of the legislature is to provide more protection to woman.

  2. Section 19 Residence Order- It states that a Magistrate may on being satisfied that domestic violence has taken place pass a residence order.


In Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and ors. The Supreme Court held that Domestic Violence Act provides for a higher right in favor of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.

It was furtherheld that when it comes to maintenance of wife under the Domestic Violence Act read with the Hindu Adoption and Maintenance Act, 1956 it is the personal obligation of the husband to maintain his wife. Property of mother-in-law can neither be subject matter of attachment nor during the life time of husband can his personal liability to maintain his wife be directed to be enforced against such property

4. Section 20 Monetary Relief- Section 20 of the Act empowers the court to order for monetary relief to the “aggrieved party.

5. Section 21 Custody orders- Under the Domestic Violence Act, 2005; the Magistrate is empowered to pass appropriate Orderswith respect to the custody of any child or children of the parties before it. He may also allow or refuse visitation right to the other party

6. Section 22 Compensation orders.—In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent

7. Section 23 Ex-parte order-(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under section 18, section 19, section 20, section 21 or, as the case may be, section 22 against the respondent.”

The Hon’ble Delhi High Court in Bharat Bararia vs Priyanka Bararia, CRL. MC. 4936 of 2015, held that:“22. Sub-clause 2 of Section 23 of DV Act empowers the Magistrate to pass such interim order as he deems just and proper therefore, it is well within the jurisdiction of the Magistrate to grant the interim ex parte relief, if the Magistrate is satisfied that the application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence.”

If you are the one who is facing Domestic Violence and willing to file a Domestic Violence case through an expert lawyer; we assure that you are on the best platform. We are the one who make sure that legal services are consistent and timely. We ensure that our clients get quality oriented services. Each matter is unique and each solution is carefully crafted. Our best domestic violence lawyer has abilities to think outside the box. Our top lawyers provide good solution to each situation.

 

 

 
7th Jul 2020

An Emotional Decision-Divorce

Divorce is a serious, stressful, life-altering experience with many emotional and legal consequences. Divorce law provides the framework that governs the circumstances under which a marriage maybe brought to an end and spouses are free to remarry. If you are thinking about divorce, you might be confused by all the different legal terms associated with divorce and how divorce actually works. We here will provides an excellent explanation for some very common legal terms associated with divorce, such as "grounds for divorce," marital property, and alimony.

In India people files two types of divorce cases. One with mutual consent and other is without mutual consent. Based on this we can divide divorce proceeding in two types:-

  1. Contested Divorce

  2. Mutual Divorce


Contested divorce- Under the Hindu Marriage Act any one of the aggrieved spouses under section 13(1) can approach the court of law and seek the remedy of divorce. Section 13(2) provides the grounds on which only the wife can approach the court of law and seek the remedy of divorce.



Grounds of Divorce as per the Hindu Marriage Act

a. Adultery- Adultery means after the solemnization of the marriage, anyone whether the husband or wife had voluntary sexual intercourse with any person other than his or her spouse. In India, earlier, adultery was a criminal offence but in a recent Supreme Court judgment adultery has been decriminalized. But it still can be used as a ground to seek divorce from a spouse who has been committing adultery.

Anandram vs Smt. Laxmi Bai-In this appeal it was alleged by the appellant that wife who was the respondent never resided continuously with the appellant and she had physical relationship with some other persons prior to the marriage with the appellant, because of which a child was born within 7 months from the date of performance of marriage. It was alleged that respondent has physical relationship with number of other persons and on these grounds, decree for dissolution of marriage was prayed for. This appeal was disposed off by the Chhattisgarh High Court and decree of divorce is granted on the ground of adultery.

b. Cruelty- Cruelty may be both physical and mental. The physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. Mental cruelty means that either the spouse is mentally tortured by the other spouse.

Vinita SaxenavsPankajPandit- The Supreme court granted a decree of divorce in favor of the wife.It was held by Supreme Court that "As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.

If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious (14 of 15) [CMA-1900/2004] and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer." The courts allowed the appeal and relievethe appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being.

c. Desertion- Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent. If one of the parties deserts the other one without giving any reasonable reason, then, it is a good reason to obtain a divorce from the other.

In Geeta Jagdish Mangtant Vs. Jagdish Mangtant {AIR 2005 SC 3508}, the Supreme Court, after narrating the evidence available in the case, held that the conclusion is inevitable, that there was never any attempt on the part of the wife to go to husband's house, therefore, from this fact alone animus deserendi on the part of the wife is clearly established. She has chosen to adopt a course of conduct which proves desertion on her part and that it was without a reasonable cause. Such a course of conduct over a long period indicates total abandonment of marriage. It also amounts to willful neglect of the husband by the wife.

d. Conversion -Converting to another religion by a spouse is another reason to claim divorce from the other.

In Sarla Mudgal, Kalyani and Ors. V. Union Of India and Ors. The Supreme Court considered the question whether a Hindu husband by embracing Islam can contract a second marriage during the subsistence of the first marriage and whether the husband would be guilty of the offence under Section 494 of the Indian Penal Code. It was held thus.

14. It is, thus, obvious from the catena of case law that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so. Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. We, therefore, hold that under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage

e. Insanity-If the spouse is unable to perform the normal duties that he or she is required to perform due to some mental illness or disorder then, in that case, divorce can be sought. However, if the mental illness does not hamper the capabilities of the person from performing his or her duties then the divorce cannot be claimed.

In Pankaj Mahajan vs. Dimple, the husband sought divorce on the ground that the wife was suffering from incurable form of Schizophrenia. The Trial Court granted divorce, but the High Court reversed the same. When the husband appealed to the Supreme Court, the Supreme Court predominantly went by the evidence relating to cruelty and granted dissolution of marriage.

f.  Leprosy-If the spouse has been suffering from some virulent and incurable form of leprosy, then, the aggrieved can seek divorce. Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is transmitted from one person to another. Thus it is considered as the valid ground for divorce.

In Swarajya Lakshmi Vs. G.S Padma Rao- The Supreme Court granted a decree of divorce on ground of leprosy. In this case, the husband filed the case for granting the divorce on the ground of leprosy. He claimed that his wife is suffering from incurable leprosy with the expert’s reports.

g. Venereal Disease- Under this concept, if the disease is in communicable form and it can be transmitted to the other spouse, then this can be considered as the valid ground for divorce.

h. Renunciation- It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead.

Illustration-A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a right to approach the court and seek the remedy of divorce

i.Presumption of Death- In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.

Illustration- X was missing from the last seven years and his wife Y does not get any news about him of being alive or dead. Here Y can approach the court and ask for the divorce.

How to File a Contested Divorce

  1. The aggrieved party will have to hire anexpert divorce lawyer first, so that he/she can provide them with all the details.

  2. A petition will be filed on behalf of the husband or wife in the court by the lawyer.

  3. Court issues summons and seek reply from the other party. A copy of the petition will be then sent to the spouse.

  4. The spouse could either agree to divorce or contest against it.

  5. Examination and cross-examination of witnesses and evidence.

  6. Final arguments by the lawyers of both the parties.

  7. The completion of the procedure will depend on the circumstances of the case.


In case of a contested divorce, the period is longer, ranging from three to five years because of complications and possibility that either party can challenge the decision in the High Court and Supreme Court.

Divorce with Mutual Consent

As per section 13B when both the parties i.e. husband and wife mutually consents to end their marriage, then, in that case, the married couple can seek a divorce from the courts. However, the court will not automatically dissolve the marriage. It is necessary to show that the couple has been living separately for over a year or two.



Steps involved in Mutual Consent Divorce

  1. First Motion involves joint filing of divorce petition.

  2. Husband & wife appear before court to record statements after filing of first motion petition.

  3. Court examines petition, documents, tries reconciliation, records statements.

  4. Court passes order on First Motion.

  5. Cooling off period of six months given to couple by court to rethink decision. However this cooling off period can be waived by court.

  6. Filing of Second Motion is done within 18 months of First Motion.

  7. Decree of divorce passed by the court.


The cooling off period of 6 months in mutual consent can waive by court.

In Amardeep Singh Vs. HarveenKaur

This is a landmark judgment case in which the Supreme Court held that the six months period, i.e., the cooling-off period is not mandatory under the section 13B of HMA.The Court held that the provision of the cooling-off period is a directory provision and can be waived off under certain circumstances. In this case, the parties were living separately for 8 years and with mutual consent decided to apply for divorce. The parties pleaded for the waiving off the provision of the cooling-off period given under section 13B (2) of the Act since they had been living separately for the past 8 years and there was no chance of reconciliation. The Court also held that the courts have the liberty to exercise their discretion of waiving off this provision depending on the facts of the case.

The Court stated that the courts while deciding the matter under this aspect can consider the following points before giving judgment:

  • That the period of six months mentioned in section 13B (2) in addition to the period mentioned in section 13B (1) has been over before the first motion of the petition.

  • That there is no chance of reconciliation between the parties. 

  • That the parties based on their mutual understanding have settled the issues like alimony, child custody, or any other issue.

  • That the application for waiver of the cooling-off period is submitted after the first week of the first motion specifying the reasons for the same.

  • That the cooling-off period would only increase their agony.

  • That if the above conditions are satisfied the court can choose to waive the period 

  • That the period mentioned in section 13B (2) is not mandatory but directory and the courts have full discretion to decide the matter on the basis of the facts and circumstances of the case. Also, such proceedings can be carried out through video conferencing.


Documents required in filing Divorce Petition

  • Address proof of husband.

  • Address proof of wife.

  • Marriage certificate.

  • Four passport size photographs of both husband and wife.

  • Evidence should be there which proves that both the husband and wife have been living separately.

  • Evidence proving that the attempts were made to reconcile but were not successful.

  • Income tax statements of the last two-three years.

  • Details of the profession and present remuneration of the petitioner.

  • Information regarding the family background of both the parties.

  • Details of the property owned by the petitioner.


If you are looking for top divorce lawyer in Delhi, you can reach to our law firm. We have a team of experienced family lawyer to help you in complex and tough divorce litigation. Our team of professional lawyer work hard to provide you hassle free legal assistance in matter related to divorce law.