Kids’ interest paramount in custody cases: Madras HC

Source: MSN.com

The Madras High Court has held that the best interest of the minor children has to be taken into account by the courts while deciding granting of their custody – whether to hand them over to their mother or father – and they shall not be treated like commodities. To read more please go to the following link:

https://www.msn.com/en-in/news/india/kids-interest-paramount-in-custody-cases-madras-hc/ar-AA1RRAAW?ocid=msedgntp&pc=U531&cvid=6936ad562dba43c8b179c2f759bc8465&ei=52

Mutual Judicial Separation: Towards An Evolving Jurisprudence in Indian Matrimonial Law

Source: India Legal

This article by Preeti Singh examines the scope of judicial innovation in contemporary matrimonial jurisprudence, specifically addressing whether Family Court can and should grant judicial separation based on mutual consent under the Hindu Marriage Act, 1955 (hereinafter referred as HMA). While the statutory scheme of HMA expressly provides for judicial separation on fault-based grounds, it does not expressly prohibit judicial separation by mutual consent. This legislative lacuna, coupled with the absence of any express bar, raises a compelling question of statutory interpretation, judicial creativity, and evolving societal needs.

To read more please go to the following link:

https://indialegallive.com/column-news/mutual-judicial-separation-towards-an-evolving-jurisprudence-in-indian-matrimonial-law/

Adultery Photographs Without 65B Certificate Valid in Matrimonial Cases: Madhya Pradesh High Court

Source: Law Beat

The Madhya Pradesh High Court, Jabalpur Bench, recently observed that photographs can be relied on as evidence in matrimonial disputes even without a Section 65B certificate under the Indian Evidence Act, 1872, as the Act does not strictly apply to matrimonial cases. To read more please go to the following link:

https://lawbeat.in/news-updates/adultery-photographs-without-65b-certificate-valid-in-matrimonial-cases-madhya-pradesh-high-court-1545715

Parent's Work-From-Home Status Alone Cannot Determine Child Custody : Supreme Court

Source: LiveLaw.in / Times of India

The Supreme Court observed that merely because a parent is working from home would not entitle him/her a custody of a child. The Court stressed that a parent can't always be available with the child, and has to go out to earn a livelihood, which shouldn't deprive the parent to avail the custody of a child. To read more please go to any of the following links:

https://www.livelaw.in/supreme-court/parents-work-from-home-status-alone-cannot-determine-child-custody-supreme-court-312133

https://timesofindia.indiatimes.com/india/wfh-status-shouldnt-tilt-balance-in-custody-battle-sc/articleshow/125775325.cms

Husband cannot use insolvency proceedings to evade paying maintenance: Bombay High Court

 Source: Hindustan Times

The Bombay High Court on Thursday ruled that a husband cannot seek the shield of insolvency proceedings to escape his legally mandated obligation to pay maintenance to his wife. A single-judge bench of justice Jitendra Jain held that maintenance payments arise from a moral and personal duty, and are not a debt that can be dissolved by bankruptcy law.

To read more please go to the following link:

https://www.hindustantimes.com/cities/mumbai-news/husband-cannot-use-insolvency-proceedings-to-evade-paying-maintenance-hc-101763666003252.html

Supreme Court says triple talaq notices through lawyers not valid

Source: Times of India

The Supreme Court questioned the validity of Muslim men authorizing lawyers to issue triple talaq notices, stating it's not a valid divorce without the husband's signature. The bench emphasized that such practices cannot harm Muslim women's dignity and will not permit unauthorized divorce notifications. To read more please go to the following link:

https://timesofindia.indiatimes.com/india/sc-3-talaqs-sent-through-lawyer-not-valid/articleshow/125450139.cms

Privacy is a fundamental right but is subject to reasonable curbs: MP High Court

Source: Times of India

In a ruling that could shape how digital evidence is treated in matrimonial disputes, Madhya Pradesh HC has upheld the admissibility of WhatsApp chats, even if obtained without consent. To read more please go to the following link:

https://timesofindia.indiatimes.com/india/privacy-is-a-fundamental-right-but-is-subject-to-reasonable-curbs-high-court/articleshow/121961224.cms

Focus on child’s welfare over parental rights in custody battles say experts

 Source: The New Indian Express

Courts must stop viewing custody battles as a fight between parents and instead focus on the child’s emotional wellbeing, emphasised legal experts and judges at a session -- Parental custody of children: Orders regarding visitation rights and custody issues -- during the Southern Zone Regional Conference on ‘Family: The Basis of Indian Society’. The two-day event, organised by the Family Courts Committee and Supreme Court of India in association with High Court of Karnataka and Karnataka Judicial Academy, concluded on Sunday. They also raised concerns about the challenges posed by cross-border custody disputes, the lack of coordination between jurisdictions and the need for a uniform approach guided by the child’s best interests.

To read more, please go to the following link:

https://www.newindianexpress.com/states/karnataka/2025/Apr/14/custody-battles-focus-on-childs-welfare-over-parental-rights-experts

Hindu marriage cannot be dissolved within one year - Allahabad High Court

 Source: The Times of India

The Allahabad High Court held that marriage between two Hindus is sacrosanct and cannot be dissolved within one year of the wedding on grounds of mutual incompatibility, unless there is an exceptional hardship or depravity as provided under Section 14 of the Hindu Marriage Act, 1955.

To read more please go to the following link:

http://timesofindia.indiatimes.com/articleshow/117650506.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

Widowed Daughter-in-law Not Required to Live in Matrimonial Home for Maintenance: Allahabad HC

 Source: News 18 - MSN

In a significant ruling, the Allahabad High Court held that under the Hindu Adoptions and Maintenance Act, 1956, it is not mandatory for a widowed daughter-in-law to reside in her matrimonial home to claim maintenance from her father-in-law. To read more please go to the following link:

https://www.msn.com/en-in/news/India/widowed-daughter-in-law-not-required-to-live-in-matrimonial-home-for-maintenance-allahabad-hc/ar-AA1q24XU?ocid=msedgntp&pc=U531&cvid=7d270901782e45ada96d6ac3317ce833&ei=9

Reflections on Supreme Court Ruling on Maintenance for Divorced Muslim Women

 Soource: News 18

Arshia Malik writes that - By ensuring that Muslim women receive their entitlements and have access to social and economic security, the Supreme Court judgement represents significant progress in India’s journey toward gender justice. To read more, please go to the following link:

https://www.news18.com/opinion/opinion-reflections-on-supreme-court-ruling-on-maintenance-for-divorced-muslim-women-8970290.html

Wife cannot stop sale of flat if husband giving alternative accomodation: HC

Source: Times of India dated 08.02.2023

To read this article by Rosy Sequeira, go to the following link:

https://drive.google.com/file/d/1_bFAYJi3MCZTTqg0r2-gsoEVXNBnMh0E/view?usp=sharing

Even after divorce, wife entitled to maintenance in domestic violence

  Source: Times of India dated 06.02.2023

To read this article by Swati Deshpande, go to the following link:

https://drive.google.com/file/d/1s7lQS5txz8xh1mP_7sAXCjME6BAMgaJK/view?usp=sharing

Misrepresenting mangalik status not grounds for divorce: Bombay HC

 Source: India Today (https://www.indiatoday.in)

The Nagpur bench of Bombay High Court refused to grant a divorce to a man, who accused his wife and her family of defrauding him by telling him the wrong date of birth at the time of marriage. The man claimed that his wife and her family changed the date to ensure that her horoscope says she is ‘mangalik’ even when she was not...........

To read this article by Ms. Vidya, go to the following link:

https://www.indiatoday.in/india/story/misrepresenting-mangalik-status-not-grounds-for-divorce-bombay-hc-1775647-2021-03-04

Men’s rights in case of separation

Source: Times of India dated 16.03.2020

Riju Mehta says, With men complaining of a legal skew in divorce and maintenance, here’s what they need to know about their rights

Given that women are at the receiving end of most marital and financial problems, it’s no surprise that men in similar situations are often ignored. They not only complain of a legal skew in favour of women when it comes to divorce, maintenance and child custody, but also in dowry-related cases. Their claims could be well-founded considering the low conviction rate of 1.5% and high acquittal rate of 43.1% in crimes under the Dowry Prohibition Act, as per the 2018 National Crime Records Bureau data. Here are the legal rights married men should be aware of.

1 Divorce

The husband has a right to file a petition for divorce with or without mutual consent. For the latter, the grounds remain the same as that for a wife. These include cruelty, desertion, conversion, adultery, disease, mental disorder, renunciation and presumption of death.

To ensure a favourable response by the court, keep a few things in mind before filing for divorce. Ensure a cordial relationship with wife, excluding physical, verbal or sexual abuse. Even if you find it difficult to stay under the same roof, do so to avoid the additional expense of a second house and to collect all documents related to divorce. It is also best not to enter into an extra-marital relationship before the divorce is finalised as it will weaken your case. Have a clean social media record, without any nasty messages, texts, threats or abuse sent to wife in the heat of the moment.

Conduct all financial transactions, sale or purchase before filing for divorce as it will impact the split of physical and financial assets in case the divorce is without mutual consent. If you think the wife may misuse your credit card or empty out a joint bank account, cancel the card and withdraw money before filing the petition.

2 Maintenance

Men’s rights to maintenance can vary under different Acts. Under the Hindu Marriage Act, 1955, both husband and wife can claim maintenance, while only the woman can do so under the Special Marriage Act, 1954. Men can avoid paying maintenance under certain circumstances. If the husband can prove the wife is earning enough to maintain herself, or that he is not earning enough to maintain himself, or that the spouse has remarried, deserted him or committed adultery, the husband does not have to pay maintenance. He may not have to pay interim maintenance either if he can prove that he is unable to earn and maintain himself, or that the wife is earning and can sustain on her own income.

3 Child custody

In a mutual consent divorce, the couple can decide about the child’s custody, which can either be full or joint, and the courts typically agree. In a contested divorce, men have an equal right to the child’s custody, even though earlier the mother was favoured by courts and granted full custody. Of late, the courts have started granting custody to the partner who is better able to look after the child’s needs.

No maintenance for women if divorce is due to adultery: HC

Source: Hindustan Times dated 26.12.2019

-- K A Y Dodhiya

The Bombay high court (HC) recently upheld an order of a lower court which cancelled the maintenance being paid to a divorced woman on the grounds that the divorce was granted after an allegation of adultery had been proved against her.

On December 18, the HC bench held that if adultery was not proved, the woman could have claimed a right to maintenance after divorce, but as that was not the case the lower court order of cancelling maintenance was valid.

The bench of justice Nitin Sambre, while hearing a criminal writ petition filed by the woman, was informed that the couple got married in 1980.

However, in 2000 the husband had sought a divorce under section 13 of The Hindu Marriage Act,1955 on the grounds that his wife had committed adultery, which was granted.

However, as the divorce order was challenged by her, the husband was directed to pay maintenance to the wife and their son.

In 2010, the wife filed an application for enhancement of the maintenance amount while the husband filed a counter application to cancel the maintenance amount in the magistrate’s court.

The lower court allowed the wife’s application while rejecting the husband’s application and directed him to pay more than three times the amount he was paying for the wife and almost eight times for the son.

Aggrieved by the magistrate’s order, the husband applied for a revision application which was allowed by the additional sessions judge at Sangli in 2015.

The judge at the lower court, in his order, had observed that as the allegation of adultery was proved against the wife and divorce was granted as per the statutory embargo under sub-section (4) of section 125 of The Hindu Marriage Act,1955, the wife was not entitled to maintenance.

Interpretation of the section says,“If the allegations of adultery are proved against such a woman or in spite of the husband being ready to maintain her, she refuses to cohabit the wife can be refused payment of maintenance.”

Based on the above submissions and interpretations, Sambre said, “Considering the expressed embargo on the right of the petitioner to claim maintenance particularly, divorce was ordered on April 27, 2000, based on the allegation of adultery, the court below has rightly held that the petitioner-wife is not entitled to maintenance.”

Unworkable marriage ground for divorce: SC

Source: Times of India dated 10.10.2019

-- Amit Anand Choudhary, New Delhi
Though ‘irretrievable breakdown of marriage’ is not a ground for divorce under the Hindu Marriage Act and Special Marriages Act, the Supreme Court has, in a significant ruling, said divorce can be granted if a marriage is totally unworkable, emotionally dead and beyond salvage.

Coming to the rescue of a man fighting a legal battle for divorce for the last two decades, a bench of Justices S K Kaul and M R Shah invoked the SC’s inherent powers under Article 142 to do “complete justice” and allowed his plea saying the marriage had broken irretrievably. The man’s plea had been earlier rejected by a lower court and the Andhra Pradesh high court after his wife refused consent for separation. The couple had been living separately for the last 22 years after their relationship ran into rough weather just a few years into their marriage in 1993.

SC rejects woman’s plea that her consent must for divorce

The apex court, in a series of verdicts, has asked the Centre to amend the law to introduce irretrievable breakdown as one the grounds for divorce, but the law remains unamended and divorce is denied even if a couple has not lived together for years and their relationship bruised beyond repair. This effectively denies them an opportunity to explore life afresh as their marriage survives in law even if not in substance.

Even the Law Commission, in its reports in 1978 and 2009, had recommended that the Centre take “immediate action” to amend the laws with regard to “irretrievable breakdown” where a “wedlock has become a deadlock”. As the Centre failed to act on the suggestions, the apex court has from time to time invoked Article 142 to grant divorce even though the existing laws do not recognise the ground for divorce.

“This court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce can be granted,” the court said.

It added, “In the present case, admittedly, the husband and wife have been living separately for more than 22 years and it will not be possible for the parties to live together. Therefore, we are of the opinion that while protecting the interest of the respondent wife to compensate her by way of lump sum permanent alimony, this is a fit case to exercise the powers under Article 142 to dissolve the marriage between both the parties.”

The bench rejected the wife’s plea that the marriage cannot be dissolved without her consent, and granted relief to the husband after noting that all efforts to continue the marriage had failed and there was no possibility of a reunion because of the strained relations between the parties.

“If both the parties to the marriage agree for separation permanently and/or consent for divorce, in that case, certainly both the parties can move the competent court for a decree of divorce by mutual consent. Only in a case where one of the parties does not agree...only then the powers under Article 142 of the Constitution are required to be invoked to do the substantial justice between the parties, considering the facts and circumstances of the case,” the bench said.

Times View: Forcing people to continue in unhappy marriages does nobody any good. Far from strengthening the institutions of marriage and family, the constant misery and strife it entails undermines them like little else can. There is good reason, therefore, for the law to make it as easy and painless as possible for people unhappy in a marriage to end it.

SC: Customary divorce from wife not licence to remarry

Source: Times of India dated 8th March 2019

SC Annuls Marriage As Man Did Not Legally Divorce His First Wife

Dhananjay.Mahapatra@timesgroup.com

New Delhi:
The Supreme Court on Thursday said marrying a second time on the basis of a “customary divorce” from the first wife will render the second marriage void as the law stipulates that a man and woman are permitted to tie the nuptial knot only if they do not have a living spouse.

This decision came in the case of an inter-caste marriage solemnised in 2010. The marriage developed strains, allegedly because of the husband’s drunken habits and matrimonial torture inflicted on the wife. While leaving for her parental home with her belongings, she discovered a marriage dissolution deed of her husband from his first wife. She later moved a Pune court seeking her marriage to be declared void.

The second wife alleged that the marriage was solemnised by fraud as the man declared himself a bachelor in the marriage registration document under the Special Marriage Act. She said there was no divorce decree from the first wife, a fact concealed from her, and he had a spouse at the time of marriage.

The man argued that he had married a second time under pressure as the woman threatened to commit suicide if he said no. He said that there was a customary divorce between him and his first wife prior to his second marriage and hence the wedding was valid. The Pune court had dismissed the woman’s petition and the Bombay HC too refused to give relief.

A customary divorce is a recognised method of separation without involving the court if such a custom is recognised by marriage laws.

On appeal before SC, a bench of Justices L Nageswara Rao and M R Shah set aside orders of the trial court and the HC and declared the second marriage null and void. It said under Section 4 of the Special Marriage Act, at the time of marriage neither party should have a living spouse. The bench also ruled that no time limit can be set for filing a petition for annulment of marriage and that it could be filed as and when a party to the marriage discovers that the other has a living spouse.

Writing the judgment, Justice Shah said, “The husband was required to prove that such customary divorce was permissible in his caste or community. In the absence of any such issue or any evidence, the courts were not justified in observing that there was customary divorce between the man and his first wife.”

The Divorce Bill: de-stigmatising leprosy sufferers

Source: DNA dated 18.01.2019
Article by Vineeta Shanker, Executive Director, S-ILF

It is heartening to note that the government has finally taken note of the huge lacuna in the country’s laws which still include clauses that discriminate against those who happen to be affected by leprosy. Recently, the government made a commendable move towards the elimination of leprosy discrimination in India with the Lok Sabha passing the bill removing leprosy as a ground for divorce. In today’s age, when leprosy, being a bacterial disease, is treatable, and a person becomes non-infective within 24 hours of starting treatment, the grounds on which the law was made no longer exist. Even more, disease and ailment as a legitimate reason for divorce within the legal system only enhances and reaffirms the stigma that exists against those affected and is a violation of human rights. This step is sure to contribute to the improvement of the overall social environment and the negative perception around leprosy.

It is worth noting here that even today there are around 19 national and state laws and possibly more municipal and local body laws that discriminate on the basis of leprosy. In fact, the law commission had, in April 2015, suo moto drafted an EDPAL (Eliminating Discrimination Against Persons Affected by Leprosy) bill, which sought to render null and void any law/clause which discriminates on the basis of leprosy. This bill would have obviated the need for the tedious parliamentary oversight on clause-by-clause examination for contravening tenets. Unfortunately, despite having been taken up by a number of NGOs, this bill has not found a suitable champion

The passing of the Divorce Bill is encouraging since it recognises leprosy as a medical condition, as a disease which can be diagnosed, treated, and cured. Through Multi-Drug Therapy (MDT), more than 15 million persons have been cured globally in the last two decades. The strong message that this Bill sends is that leprosy need not be feared. It is in line with the protection of human rights of those affected by leprosy. India is a signatory to the UN Human Rights Council Resolution recognising discrimination against leprosy to be a violation of human rights. For those affected, it is a reaffirmation of their rights and a government recognition that the stigma against the disease is unwarranted.

The need to address the issue of stigma in India is critical. Today India has the highest prevalence rate of leprosy in the world. More than 55 per cent of all new cases are in India, and India accounts for 5 per cent of the total global leprosy burden. Many countries, far behind India in terms of economic growth, have done a better job of tackling the disease and bringing down the new cases to Eliminate Rate � which is less than one per 10,000 population. India too achieved it at the national level as far back as 2005. Unfortunately, however, since then the progress in the elimination of leprosy as a public health concern has been slow and in absolute numbers � stagnant.

The government has in recent years taken cognisance of this and intensified its efforts on multiple fronts to detect, diagnose and treat those affected. Most of these efforts on the medical side have resulted in many more cases being identified and in being identified before the onset of leprosy-related disabilities. This, in turn, will help in interrupting the transmission of the disease and eventually lowering its incidence in the country.

A major factor that slows down the efforts on the medical side is the social stigma attached to the disease as it prevents people from seeking early treatment. Afraid of social exclusion and rejection, those affected try to hide it till it can no longer be hidden. Late detection and treatment, even though it can cure the disease cannot reverse the nerve damage and disabilities. It also results in the continued transmission of the disease.

To address the stigma, greater social awareness and a change in the social environment where leprosy is no longer feared and those affected are accepted and included is essential. To this end, the recent Divorce Bill is a step in the right direction. It gives the right social message.

The good work begun by the government on the social front needs to be further strengthened. The discriminatory clauses in the different laws need to be annulled; affirmative action to include those affected within the social welfare net needs to be stepped up; above all a determined effort at raising awareness about scientific facts about leprosy and overcoming myths and fears associated with it addressed to ensure that India too becomes leprosy free.

Joint custody of child concept exemplary: HC

• Source: 8 Jul 2015
• Hindustan Times (Mumbai)
• Ayesha Arvind ayesha.arvind@hindustantimes.com

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MUMBAI: The Bombay high court (HC) last week upheld that the concept of joint custody of a child, which was recommended by the law commission, is exemplary and must be implemented increasingly. This was observed while the HC was hearing an appeal against the Bandra family court’s recent landmark order on joint custody. The family court, in line with the recommendations of the law commission, had set out a parenting plan for an estranged couple and granted both parents six months each with their daughter.

Although it stayed the implementation of the parenting plan notified by the family court detailing the shared custody in its order, the HC directed the estranged couple to equally divide the primary custody of their minor daughter for 20 days on a trial basis.

The HC order came after the father of the six-year-old child, a doctor who lives in Chembur, pleaded that the family court’s order was “hasty and erroneous”. His counsel submitted before the HC that following the law commission’s recommendation, the family courts have begun to rampantly order shared custody without taking in the consent of both parties, sometimes, even “threatening couples with contempt” if they refuse to implement it.

“These courts are trying to force couples into submitting to the consent terms of the parenting plans. This is becoming an increasing trend in family courts. The concept is still in an embryo stage. Let us not make it into a full grown child,” said senior counsel Rajani Iyer.

HC, however, ruled that the concept of shared parenting and a parenting plan whereby both parents make equal effort towards bringing up their child was commendable.

“The concept though new is noble and hence, the enthusiasm shown by courts. Sometimes, courts take an eager stand and so it comes as a shock to litigants. However, till the courts are keeping the primary objective of ensuring the welfare of the child, these orders can be worked out,” said justice Mridula Bhatkar.

HC has now ordered the city couple to keep the child with them for equal number of days till July 23, the next date of hearing.