0

Working and well qualified wife not entitled to maintenance rules Delhi High Court

Sanjay Bhardwaj & Ors. Vs State & Anr, 2010 IV AD (CRL) (DHC) 481 (HIGH COURT OF DELHI) CRL. M.C.NO. 491/2009

“We are living in an era of equality of sexes. The constitution provide equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA decree, cannot be treated differently to an unemployed wife, who is also holding an MBA decree. Since both are on equal putting one cannot be asked to maintain other unless one is employed and other is not employed. “

Hon’ble High Court further held that “no law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning. “

Advertisements
2

How to fight false 498a, 406, dowry case ? A legal survival guide.

This article endeavours to educate the sufferers of a false 498a/dowry case on how to defend a false case, it also tries to help thousands of families in and around India  who are on the brink of facing such false cases on successfully pre-empting or guarding against such false cases. 

“For men in India marriage is a lottery but you can’t tear up your ticket even if you lose” and it’s not just you who would have to live with the lost lottery but your entire family may have to suffer at the hands of a system so grossly skewed in favour of women.

Marriages may fall apart for a lot of reasons, temperamental issues, compatibility problems, but does that make you an offender in the eyes of law? Yes it does, your estranged wife in order to have her way in arm-twisting you may implicate you and your family in end number of false cases, 498A being the foremost.

498A penalizes cruelty for dowry, almost always comes along with S.406 Allegations which basically penalize the criminal breach of trust, when your wife’s articles are entrusted to you and you fail to return them back – misappropriate them or convert them to own use – you are criminally liable !. By aid of S.34 of the Indian Penal Code – your family/relatives can be held liable for the same if they share the common intention with you.

Now if you think that you have a wife who can potentially do this for money or the kicks that her ego gets out of the same or pure vengeance then you are my friend in a vulnerable situation, but there is a silver lining to this, there are legal strategies that may help minimize, if not completely rule out, the damage or mischief that may occur to you.

Being a Supreme Court Advocate and a Men’s Rights Activist I speak from experience, the following things may(if done correctly) help in a lot of cases :-

1. Insist on a dowry-less marriage – Preparing of list of articles received at the time of marriage, countersigned by both the families, would help rule out exaggerated claims later !

2. Digging the well before the fire starts; when trouble starts at home you apprise all concerned of the problems that you are facing, not for the purposes of any action but information;

If you see things going awry in near future, then it would be good idea to seperate from parents to a rented house with sufficient public notices;

3. As per the prevailing law atleast here in Delhi, if your wife approaches a Police Station with her complaint, she is to be forwarded CAW CELL instituted to try and reconcile and investigate and act as buffers so that penal actions are not initiated right away. Once the matter goes to CAW Cell – apply for an anticipatory bail , you are sure to get notice bail atleast – this would help in two ways :-

a) Give you greater confidence, level playing field in the CAW Cell talks;

b) Prevent any hasty arrest on failure of conciliation;

All in all nothing to lose in this and in this step 1. Would help a great deal.

4. Seek a copy of complaint via RTI ASAP, since they deny at the first instance you’d have to appeal there from which may take some time. There are CIC Decisions that would help you here.

5. In the event of an FIR being registered apply for AB again, and quashing of FIR (not always depends on the kind of allegations leveled)

6. Filing Restitution of Conjugal Rights (case that you want her back) may help in some cases, but not in all. Sometimes it helps in defending maintenance cases, and showing your bona fides.

7. Keep a check on your wife’s finances. Would come handy defending maintenance cases.

8. Prosecution (S.340 CrpC) for perjury in cases of false & exaggerated claims in maintenance petitions.

9. Tax Evasion Petitions once you get the List of Istridhan may also help put pressure.

10. Dowry Prohibition Act – penalizes giving of dowry so in case there is a clear admission of DOWRY (not Istridhan) then in that case your in laws are also liable to be prosecuted. Think on these lines !

11. With a marital property law on the anvil, don’t buy property in your name, much less jointly with spouse.

The above may go a great deal helping you defend correctly, my advise would be to stand your ground, don’t give in to their extortionate tactics, once you’d get an AB the worst would already be over and after that the judicial system with it’s endemic delays won’t treat your wife differently, sooner or later she would realize that frivolous litigation doesn’t pay !

The author is a Supreme Court Advocate and a Mens Rights Activist with over 40 years of experience and can be reached at rpchughlawyersupremecourt@gmail.com. 

0

Foreign Court order on child custody held binding on the mother and conclusive on Indian Courts, by the SC in a petition filed by the Husband/father of the chidlren.

In a remarkable case, The SC has upheld that due weight should be given to an order of child custody filed by the father in a foreign court. 

Interim/interlocutory order for making child ward of court passed by foreign (UK) court of competent jurisdiction first in point of time deserves due weight and respect. Violation of such order by a parent should be viewed strictly as that would be destructive of rule of law and principle of comity of courts, although mere violation ought not to have penalising result. There must be some special reason, like want of jurisdiction of foreign court, for disregarding such order.. [Surya Vadanan v. State of T.N., (2015) 5SCC 450]

Here is the link to the judgment.

http://judis.nic.in/supremecourt/imgs1.aspx?filename=42447

0

Abusing a spouse and spouse’s family using derogatory terms, amounts to cruelty. Husband entitled to divorce.

upreme Court: In the instant case related to dissolution of marriage, the Division Bench of Vikramjit Sen and A.M Sapre, JJ., observed that a spouse abusing the other using derogatory terms; calling the police on flimsy grounds and refusing to allow close relatives to visit and reside in the matrimonial home, all this amounts to cruelty towards the other spouse, and cannot be termed as normal wear and tear of family life.

In the present case, the appellant had filed for divorce under Section 13 (1) (i-a) of Hindu Marriage Act, 1955 on the ground that the respondent was verbally abusive towards his family and would often threaten to lodge false police complaint or commit suicide and used derogatory words like “belonging to prostitute family” for the appellant and his sister. The appellant pleaded through his counsel Vikas Mehta, that he had suffered mental agony of such degree that it became impossible for him continue the marriage with the respondent. On the contrary the respondent through her counsel Shadan Farasat pleaded that, the appellant had been living a wayward life and she was being regularly harassed by her in-laws. The respondent further filed a petition seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, along with a maintenance petition seeking Rs. 2 lakhs per month as maintenance. On careful perusal of the evidences provided by the appellant, the Trial Court found the allegations leveled by the appellant to be true, therefore the order of dissolution of marriage was passed. On appeal, the Madras High Court dismissed the divorce petition terming the allegations of the appellant to be nothing more than “ordinary wear and tear” that takes place in a marriage.

On perusal of the background of the case and the arguments, the Division Bench was of the view that the appellant had sufficiently proved the instances of mental cruelty presenting various evidences and documents. The Court further observed that keeping with the requirements of Order VI Rule 2 of CPC, the Trial Court meticulously examined the evidences and gave out a well reasoned decision concluding that the respondent’s actions amounted to cruelty upon the appellant, thus the Madras High Court was not justified in setting aside the decision of the Trial Court without giving substantial reasons. Therefore the Court restored the Trial Court’s decision to dissolve the marriage of the parties setting aside the impugned decision of the High Court. [Vinod Kumar Subbiah v. Saraswathi Palaniappan, 2015 SCC OnLine SC 386, decided on 24.04.2015]

0

Major respite for Brothers and sisters implicated in 498a/304B dowry death cases.

Brothers and sisters don’t stand on same footing as husband and parents in case of dowry death

Supreme Court: Taking into consideration the tendency of naming all the members of the family as accused in case of a dowry death, the bench of T.S. Thakur and A.K. Goel, JJ noted that while deciding such matter the Court has to adopt pragmatic view and when a girl dies an unnatural death, allegation of demand of dowry or harassment which follows cannot be weighed in golden scales. However, at the same time, omnibus allegation against all family members particularly against brothers and sisters and other relatives do not stand on same footing as husband and parents. It was further said that in such case, apart from general allegation of demand of dowry court has to be satisfied that harassment was also caused by all the named members.

Giving benefit of doubt to the relatives named in the present case where a pregnant woman committed suicide as a consequence of harassment at the hands of her in-laws for the demand of dowry, the Court was of the opinion that normally, it is the husband or parents of the husband who may be benefitted by the dowry and may be in a position to harass and not all other relatives, though no hard and fast rule can be laid down in that regard.

Considering the nature of relationship of the appellants i.e. being sisters and brother of the husband of the deceased, the court held that the possibility of the appellants’ having been named by way of exaggeration cannot be ruled out and futher said that it is true that till such an unfortunate event takes place, the family members may not disclose the demand of dowry being a private matter and under the hope that the relationship of the couple may improve.

[Monju Roy v. State of West Bengal, 2015 SCC OnLine SC 358, decided on 17.04.2015]

0

Section 493 IPC not attracted if ex-parte decree of divorce is set aside by a subsequent order

Supreme Court: In an interesting case that came before the Court where the respondent, after receiving an ex-parte decree of divorce, had continued to live with the appellant and then consequently marrying another woman, the bench of JS Khehar and SA Bobde, JJ was confronted with the question that whether the husband had committed offence under Sections 493 and 494 of the IPC.

Considering the fact that the ex-parte decree of divorce was set aside by a subsequent order, the Court held that the matrimonial tie between the appellant and the respondent, will be deemed to have subsisted during the entire period under reference (08.01.1994 to 23.06. 1994 i.e. the date of order granting ex-parte decree of divorce to date of second marriage of the husband). Hence, it was held that the charge against the respondent is not made out, under Section 493 IPC, because the respondent could not have deceived the appellant of the existence of a “lawful marriage”, when a lawful marriage indeed existed between the parties, during the period under reference.

Regarding the compoundable offence under Section 494 IPC, the Court took notice of the fact that not only the respondent had entered into a second marriage and had fathered 2 children but also the appellant had begotten a son from her second marriage. Acting upon the request made the appellant to compound the offence but on awarding a reasonable cost to her, the Court held that the best course for the parties is to settle their dispute amicably and hence, directed the respondent to pay a sum of Rs. 5,00,000 to the appellant, thereby, compounding the offence under Section 494 IPC.

[Ravinder Kaur v. Anil Kumar, 2015 SCC OnLine SC 359, decided on 09.04.2015]

0

Recognition of Foreign Divorce in India

  1. As regards applicability of foreign judgments in matrimonial cases – there is a direct judgment on this aspect delivered by the Hon’ble Supreme Court of India.  Y.Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr.; Decided on 9 July 1991;(1991)3SCC451, the relevant part reads as under :-

Para 13 reads “13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”

**

Para – 12 of the said judgment further reads : “The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country

**

Another recent Delhi High Court Judgment is the case of Pritam Ashok Sadaphule v. Hima Chugh (2013) 200 DLT 374, where the Court refused to recognize a decree passed in a foreign court on the ground of irretrievable breakdown of marriage. Para 12 of the said judgment reads as under :-

“12. It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed by Hindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce  under the Hindu Marriage Act…”

The Hon’ble High in para 14, after upholding the trial court judgment, not recognizing the foreign decree, held :-

“The learned trial court has also considered the judgment of this court in Harmeeta Singh vs. Rajat Taneja reported in MANU/DE/0010/2003 : I (2003) DMC 443 and Mrs. Veena Kalia vs. Dr. Jatinder Nath Kalia and anr. reported as MANU/DE/0012/1996 : 59 (1995) DLT 635 in coming to the conclusion that decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC”

**

Another Delhi High Court judgment is Harmeeta Singh v. Rajat Taneja 2003IIAD(Delhi)14 – which supports the preposition that in case parties are Hindus, married as per Hindu Rites and Ceremonies – a Divorce decree in conformity with Hindu Law is imperative and if no such decree is obtained – the marriage of the parties would still subsist in the eyes of Indian law, which would result in the anamolous position of parties being married as per law in India, and divorced as per Colorado Law. Another consequence that would flow out from such a situation is that if the petitioner after obtaining a divorce from the present Hon’ble Court – marries again – since he is married under the law of India – would still be bound for bigamy as per the law of India. There is no gainsaying the fact that bigamy in India is a serious penal offence attracting punishment upto 7 years.

0

Irretrievable breakdown – not a ground for divorce in India

Irretrievable breakdown – not a ground for divorce in India

IN THE SUPREME COURT OF INDIA
Civil Appeal No. 1330 of 2009 (Arising out of SLP (C) No. 13166 of 2007)
Decided On: 27.02.2009

Appellants: Vishnu Dutt Sharma Vs. Respondent: Manju Sharma

ORDER

1. Leave granted.
2. This Appeal has been filed against the judgment and order dated 07th May, 2007 passed by the High Court of
Delhi in FAO No. 302 of 1996 whereby the High Court has dismissed the appeal filed by the husband-appellant.
3. Facts giving rise to this appeal are:
The marriage took place between the appellant and the respondent on 26.02.1993 and a female child was born on
6.12.1993. In the petition filed by the appellant, it was alleged that soon after the marriage the respondent was
behaving in a cruel manner derogatory to the appellant and the family members; that the respondent avoided staying
in the matrimonial home and never remained there for more than 25 days together; and that after leaving the
matrimonial home on 19.5.1993 while she was pregnant with the child, the respondent never returned to live with
the appellant. It was also alleged that the father of the respondent is a retired Sub-Inspector of the Delhi Police and
brother is a Constable and both used to extend threats to the appellant and his family members that they would be
implicated in false cases.
4. Respondent in her written statement stated that on 14.09.1994, the appellant and his family members gave her a
severe beating which led to her being medically examined by the doctors at Ram Manohar Lohia Hospital. A copy
of the extract of the MLC register on that date was enclosed to the written statement. It was also stated that the
appellant and his mother had taken the jewellery of the respondent and given it to the wife of the appellant’s brother
and on asking, respondent was again assaulted and sought to be burnt alive by the family members of the appellant.
5. The trial Court after examining the evidence came to the conclusion that no case of cruelty had been made out as
alleged by the appellant. The Trial Court held that considering that the respondent had been turned out of the
matrimonial house and had been given beatings for which she was medically examined,it was the respondent who
was treated cruelly by the appellant.
6. Being aggrieved, the appellant preferred an appeal in the High Court.
7. The High Court, by the impugned order, while dismissing the appeal filed by the appellant-husband, observed in paras 13 & 17 as under:
13. …The respondent has categorically stated in her examination-in-chief that the appellant and her in laws beat her mercilessly on 14.09.1994 as a result of which she was medically examined at the Ram Manohar Lohia Hospital, New Delhi on 15.09.1994. She has also withstood the cross- examination on this aspect. On a reading of the entire evidence, it is not possible to conclude that the appellant has been able to establish that the respondent treated him with cruelty.
17. In the instant case, the respondent wife has both before the trial Court and this Court been able to demonstrate that far from treating the appellant with cruelty, she in fact suffered cruelty at the hands of the appellant. To grant divorce to the appellant despite this only on the ground of irretrievable breakdown would not, in the view of this Court, be doing justice to the respondent.
8. We are not inclined to interfere with the finding of fact of both the courts below that it was the appellant who treated the respondent with cruelty, rather than the other way around.
9. Learned Counsel appearing for the appellant has streneously argued that the marriage between the parties be dissolved on the ground of irretrievable breakdown.
10. In this connection it may be noted that in Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’) there are several grounds for granting divorce e.g. cruelty, adultery, desertion etc. but no such ground of irretrievable breakdown of the marriage has been mentioned for granting divorce. Section 13 of the Act reads as under:
13. Divorce–(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party–
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii)has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
xx xx xx xx xx xx
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.
11. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.
12. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents.A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant.
13. Had both parties been willing we could, of course, have granted a divorce by mutual consent as contemplated by Section 13B of the Act, but in this case the respondent is not willing to agree to a divorce.
14. For the aforesaid reasons, this appeal is dismissed. No order as to costs.

0

How to get a Divorce by Mutual Consent in India ?

This article explains all you need to know about getting a divorce by mutual consent.

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

Divorces are tough ! But so are marriages that take a toll on your physical/mental well being, divorce is no more a taboo, and people are increasingly accepting the harsh realities of their relationships, and are taking decisions so as to get into better relationships.

In India divorce if contested by the other party, can be got only by proof of cruelty (physical or mental), desertion (unjustified seperation of 2 years), adultery (sexual intercourse outside wedlock), insanity etc.

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

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

Now cutting to the chase, here is what you need for a mutual consent divorce :-

Before going to the Court.

i) A seperation of one year before filing the case please note that actual physical seperation is not required, even if both parties are sleeping in the same bedroom they can be said to be seperated for the purposes of mutual consent, if they are not living together as husband and wife;

ii) A flawlessly drafted MoU (Memorandum of Understanding) that settles the terms on which you part away, people don’t understand the importance of this, this is extremely important so as to end the matters with a finality once and for all, there are no loose ends and make sure there is no litigation in future;

Once the above is done – you have to get drafted the Divorce petition that encapsulates the contents of your earlier MoU.

After Court

When you file your divorce by mutual consent petition – it comes up for hearing and your statements are recorded, then the court gives you a period of 6 months (basically to think over your decision) after which,  on recording of final statements divorce decree is passed.

Monetary Settlement/Maintenance/Alimony/Child Custody issues.

A Mutual Consent petition gives you the flexibility to come to your own terms with respect to the issue. If a full and final settment is reached – the money can be paid before the court at the time of final hearing.

0

Divorce in India. All you need to know about contested and mutual divorce.

Divorce in India

This article explains all you need to know about getting a divorce in India.

Marriage as opposed to relations of blood, is one which we enter into by our own choice and not by virtue of our birth. Conceptually Marriage is both a Sacrament & a Contract.  It is a contract because it is based on offer and acceptance and is akin to an agreement to live together. Sacrament because of it’s religious ties.

As it is connected with the freedom of choice, sometimes we do make choices that do not turn out the way we would want them to be.

Divorce allows a person to break free from an onerous marital relationship. But since marriage is not merely a contract but a very important societal institution. The law has an interest in protecting marriage, and not allowing it to be severed only by choice and on ordinary wear and tear.  Since society in countries like ours takes special interest in protecting it – In our country to get a divorce one needs to prove certain grounds for eg : cruelty/adultery/desertion etc.  Known as matrimonial offences. (Crimes relating to marriage)

A happy marriage is a harbour in the tempest of life an unhappy marriage a tempest in the harbour of life, more and more people are realising the reality of their relationships, and accepting divorce as the rational choice to a better life necessary premised on better relationships. It is no more a taboo and especially so in urban cities.

Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. However there may be cases where the decision to part may not be a mutual one, and it is only one party who considers the union to be troublesome and worth getting rid off. Such situations lead to Divorce being contested.

Contested Divorce

In this regard we follow the fault based system of divorce. Divorce is granted only on proof of fault or guilty conduct of one party and innocence of the other. The most common ground for divorce is cruelty (Simply such conduct as to make it impossible for parties to live together – this includes mental or/and physical torture). Another common ground is adultery (sexual intercourse outside wedlock) one instance of lapse of virtue can lead to divorce.

Divorces are also common on grounds of desertion (simply wilful abandonment of one spouse by the other without reasonable cause/excuse). Apart from this Conversion of religion/Unsoundness of mind/Renunciation of world are also grounds for divorce.

As per the law as it stands our legal system does not allow divorce to be granted on the ground of irretrievable breakdown of marriage or irreconcilable differences.(Known as no fault grounds). Call it impractical & absurd. To get a divorce one has to prove wrongdoing on the part of other spouse, and impeccable conduct of one’s own in order to win. Which is impossible sometimes. Legislature has taken note of this pragmatic reality and a bill on the same topic is pending in the Parliament, which would allow a person to seek divorce on ground of inherent incompatibility leading to breakdown of relationship.

PROCEDURE OF GETTING A CONTESTED DIVORCE

  • Ascertain the ground on which you want to seek divorce.
  • Collect evidences.
  • Consult a seasoned divorce lawyer and file a petition in the Family Court of your district.

HOW DOES YOUR CASE PROCEED ? AND HOW MUCH TIME DOES IT TAKE ONCE IT IS FILED IN THE COURT 

Petition is filed in the court with all the relevant evidences/documents. Person filing the petition is called ‘the petitioner’ and erring spouse responding is ‘the respondent’. (Remember to annex all documents on you rely with the petition itself – Videos/Audio Recordings/Photos are documents within the meaning of evidence act, and admissible in evidence, your’s spouse emails/chats/facebook/twitter updates are also admissible to prove depravity/infidelity or whatever !

After you file the petition in the court – erring spouse is summoned, if he/she turns up and enters appearance the matter is bi-parte, if the erring spouse prefers not to contest or come to the court, the matter is proceeded ex parte (in absence) and divorce granted if the matter is worthy of the same.

* In case of bi-parte – the court normally would before seeking a reply from your spouse of the allegations levelled by you – would refer the parties to a mediation or conciliation, so that issues can be resolved amicably this way or the other. Whether leading to a reconciliation (living together) or an amicable divorce.

  • If the above fails, the erring spouse/respondent would file a Written Statement to your petition with the necessary documents (Normal time for filing a WS is 30 days (Max : 90 Days). Following which one can file a replication to further elaborate and explain.

*Once that is done the court would frame issues – issues are questions that are to be decided by court at the time of final hearing. For eg : in a Divorce on the ground of adultery – the issues would be “Whether the respondent had sexual intercourse with X during the subsistence of marriage with the petitioner” ? The answer to this question would decide the fate of divorce case. There may be more than one issue in case of multiple grounds. The entire divorce proceedings are premised at answering this question/issue.

  • After issues are framed – the court would ask petitioner to lead evidence, his own or/and his witnesses. This also is decided into three stages. First petitioner would lead his witness and examine him. Thereby putting the foundation of his case. (Called examination in chief) Thereafter the opposite party would cross examine the petitioner’s witness. (Called cross examination) Cross examination includes exposing the falsity of a witness’s deposition by putting leading questions, and contradicting the witness. Witness may either withstand the onslaught of questions – thereby retaining the confidence and reliance of the court, or he may stand discredited.
  • The Party calling the witness is further given an opportunity to fill the holes the opposite party’s advocate has busted into it and make the court believe in it’s witness.

The same process is repeated for each witness on either side. Once petitioner’s evidence is over, respondent leads his or her evidence. Please note petitioner/respondent/family members are all competent witnesses.

Once evidences are over. The Court would finally listen to arguments of either side on the case, and then proceed to decide the case.

On how the evidences are appreciated, to illustrate in a case based on cruelty the court would normally see whether on the totality of evidences led, is the conduct of respondent such as to make living together a practical impossibility ? Does it pose a great risk to physical or mental well being of the petitioner.

The Court’s formal order in the end is known as the ‘decree’. After this either party may appeal in the High Court and then finally the Supreme Court.

Normally the process in the Family Court would take anywhere between 2-3 years if contested vigorously. My experience has shown that parties normally lose patience somewhere in between and agree to part ways amicably. Because litigation does not really pay for anybody but the lawyers.