Saturday, 18 February 2017
*SOME IMPORTANT CITATIONS ON SEC 24 OF HINDU MARRIAGE ACT*
Richa Arya Vs. State of NCT of Delhi & Anr.2016 ALL MR (Cri) JOURNAL 233
Protection of Women from Domestic Violence Act (2005), Ss.12, 18, 19, 20, 21, 22, 23 - Hindu Marriage Act (1955), S.24 - Interim measure - Refusal to grant on premise that petitioner being granted maintenance pendent lite under divorce proceedings - Held, relief u/S.12 of DV Act is in addition to any other relief - It is not necessary that relief under DV Act can only be sought for in proceeding under DV Act - Same may also be sought for in any legal proceeding even before a civil court and family court apart from criminal court - Therefore, rejection of claim, held, not proper. (Paras
Amit Rasiklal Shah Vs. Sonal Amit Shah2011(1) ALL MR 765
Hindu Marriage Act (1955), S.24 - Interim maintenance - Husband producing income-tax returns - Computation of taxable income must be seen in its entirety and only net income cannot be considered. (Paras
Smt. Vrinda Bharat Mhapsekar Vs. Shri Bharat Prabhakar Mhapsekar2013(2) ALL MR 271
Hindu Marriage Act (1955), S.24 - Application for enhancement of maintenance - Change of circumstances viz. promotion in service - Fit case for enhancement of maintenance. (Paras
Sau. Vanita Pravin Gaikwad Vs. Shri. Pravin Pundlik Gaikwad2010 ALL MR (Supp.) 445
Hindu Marriage Act (1955), Ss.13, 24 - Civil P.C. (1908), O.8, R.1 - Divorce petition - Grant of litigation expenses - Application filed under S.24 by wife for grant of litigation expenses - Wife cannot be compelled to file a written statement unless an order is passed in favour of the wife directing the petitioner husband to pay litigation expenses - Wife is expected to file written statement only after the amount is paid to her.(Para
Ritula Singh Vs. Lt. Col. Rajeshwar Singh2010(3) ALL MR 828
Hindu Marriage Act (1955), S.24 - Maintenance to wife - Interim maintenance - Wife having income sufficient to maintain herself - Merely because the husband starts earning additional amount, she cannot be taken not to have income sufficient to maintain herself ipso facto. (Para
Arvind Chenji Vs. Krishnaveni2010(1) ALL MR (JOURNAL) 33
Hindu Marriage Act (1955), S.24 - Interim maintenance - Grant of, in favour of children, not permissible - Section 24 confers right upon spouses alone, to claim maintenance - Children alone, excluded - Lower Court order granting interim maintenance to two minor children also, held, bad. (Para
8. It needs to be mentioned that the EP filed by the respondent was under Rule 11 of Order 21, read with Rule 141 of the Civil Rules of Practice. A specific prayer was made for attachment of some items of movable property. Whenever a decree-holder wants the judgment-debtor to be arrested, an application under Rule 37 of Order 21, CPC has to be made. Detailed procedure is prescribed to deal with applications, filed under that provision. The scope of enquiry would be, as to the means, possessed by the judgment-debtor, and his disinclination to pay the decretal amount. Even assuming that the EP filed by the respondent herein can be treated as under Order 21, Rule 37, the Family Court did not bestow its attention to the prescribed procedure. Therefore, the direction issued by the Executing Court, for arrest of the petitioner, is not sustainable in law.
Smt. Manju Kamal Mehra Vs. Mr. Kamal Pushkar Mehra2009(5) ALL MR 798
Hindu Marriage Act (1955), Ss.9, 24 - Hindu Adoption and Maintenance Act (1956), S.18 - Grant of maintenance to wife - Challenge to - Decree of restitution of conjugal rights against wife - Held, when the husband has succeeded in obtaining a decree of restitution of conjugal rights against the wife, it is implied that wife was required to join the company of the husband at her matrimonial home and therefore, there is no question of maintenance at least from the date of the said order - Order to that extent is required to be set aside - However, Court refused to interfere in the maintenance granted to daughter.
Smt. Snehal W/O. Sanjay Bapat Vs. Shri. Sanjay S/O. Madhusudan Bapat2009(4) ALL MR 39
Hindu Marriage Act (1955), S.24 - Interim maintenance - Enhancement of - Held, interim maintenance is an order which is meant for providing subsistence during the pendency of proceedings - In these circumstances, enhancement or the reduction in the interim maintenance can be sought by an application, if there is change of circumstances or extra-ordinary long delay in disposal of matter, even though there is no express statutory provision to pass such order. (Para
Akella Rama Murthy S/O A. Thimmaya Shastry Vs. Akella Sitalaxmi W/O A. Rama Murthy2006(3) ALL MR (JOURNAL) 31
Hindu Marriage Act (1955), S.24 - Maintenance - Claim for children - Right to claim maintenance is conferred only on husband or wife - It is impermissible to grant maintenance to children of the parties - Their remedy is under S.125 of Cr.P.C. and Hindu Adoptions and Maintenance Act. (Para
Smt. Pampa Das Vs.Sanjib Das2005(4) ALL MR (JOURNAL) 65
Hindu Marriage Act (1955), S.24 - Maintenance pendente lite - Application for - Conduct of applicant is immaterial - It is not open to Court to pre-judge the issues and to hold that as the applicant is guilty of matrimonial offences applicant is not entitled to alimony pendent lite and expenses of proceedings.
Mrs. Rajashree Alias Vanita Rajesh Dixit Vs. Shri. Rajesh Nagesh Dixit2005(4) ALL MR 63
Hindu Marriage Act (1955), S.24 - Criminal P.C. (1973), S.127 - Civil P.C. (1908), O.47, R.1(1) - Grant of maintenance - Alteration of interim maintenance amount - Provisions of S.24 of Hindu Marriage Act, cannot be given restricted meaning - If in a given case, an application is made for alteration of the interim maintenance amount already granted, such an application will have to be entertained as an application for review under order 47 of R.1(1) of Civil P.C. or in the alternative an application u/s. 127 of Criminal P.C.
Sanjay S/O Pundlikrao Niranjane Vs. Swati W/O Sanjay Niranjane2005 ALL MR (Cri) 2377
Criminal P.C. (1973), S.125 - Hindu Marriage Act (1955), S.24 - Maintenance - Grant of - Claim of maintenance by wife u/s.125 of Criminal P.C. - Husband already paying higher amount of maintenance in compliance with the order passed under S.24 of Hindu Marriage Act - Wife not entitled to claim maintenance under S.125 of Criminal P.C. in view of the order passed u/s.24 of Hindu Marriage Act. 2000 ALL MR (Cri) 372 – Followed
Vanmala W/O Maroti Hatkar Vs. Maroti Sambhaji Hatkar1999(2) ALL MR 504
Hindu Marriage Act (1955), S.24 - Order granting interim alimony and expenses of litigation to wife - Petitioner husband refusing to pay - Wife need not be driven to file execution proceedings - Court can in exercise of inherent powers stay proceedings for divorce for non-compliance with its order.
Mr. Krishnakant Mulashankar Vyas Vs. Mrs. Reena Krishna Vyas And Anr1999(2) ALL MR 103
Hindu Marriage Act (1955), Ss.5(1), 11 and 24 - Hindu Adoption and Maintenance Act (1956), S.18 - Second marriage while first marriage is subsisting - Marriage is void under S.11 read with S.5(1) - Second wife however is not disentitled from claiming maintenance pendente lite under S.24 - She is also not disentitled from claiming interim maintenance under S.18 of 1956 Act.
Occupation Of Rented Premises By Tenant’s Son-In-Law Amounts To Subletting: SC [Read Judgment]
Read more at: http://www.livelaw.in/occupation-rented-premises-tenants-son-law-amounts-subletting-sc/
Friday, 10 February 2017
*⭐Maintenance Case laws in favor of husbands:*
1. Reduced interim maintenance. (SC), Hbl J. R. M. Lodha, order on 20-07-2010, Appeal No. 5660 of 2010, Arising SLP (C) No. 6736 of 2007, Neeta Rakesh Jain Vs Rakesh Jeetmal Jain. Citation No. AIR 2010 SC 3540; (2010) 12 SCC 242; 2010 (7) JT I 76 (SC).
2. Wife is not entitled to maintenance who deserted her husband. (Supreme Court), Bench Hbl JJ. S. Ahmed & D. Wadhwa, order on 02-03-200, AIR 2000 SC 952, 2000(2) ALD Cri 15, 2000Cr. LJ 1498, Rohtash Singh Vs Smt. Ramendrei & Ors. Citation No. (2000) 3 SCC 180; JT 2000 (2) SC 553.
3. Maintenance not granted as it is proved that wife wants to reside separately. No maintenance to deserting wife. (HC Chhattisgarh), Hbl J., L. C. Bhadoo, order on 15 -02-2004, Crl. Revision No. 544/2003, Shiv Kumar Yadav Vs Santoshi Yadav.
4. Husband can get PF details of wife. (CIC, Delhi), Decision No. 1816/ IC (A) 2008, F No. CIC/MA/A/2007/00583, Prof M.M. Ansari, order on 10 Jan 2008.
5. Wife guilty of contempt of court, maintenance denied with cost. (HC Delhi), Hbl J. S. N. Dhingra, order on 25-01-2010, Cont. Case (C) 482 of 2008, Gurbinder Singh Vs Manjit Kaur.
6. Children have to maintain their parents. (High Court Gujrat), Hbl J. Akhil Kureshi, order on 09-02-2011, CR RA/759 of 2009, 4/4, Hasmukhbhai Narayan Bhai Viramiya Vs State & Ors.
7. Conditions when maintenance to be paid. (High Court Delhi), Mr. Pradeep Nandrajog J., order reserved on 02-04-2007, order on 14-04-2007, CM (M) No. 367 of 2007, Alok Kumar Jain Vs Purnima Jain. Citation No. 2007 (96) DRJ 115.
8. All states amends in Sec 125 CrPC is invalid. (SC), Bench Hbl M. Katju, Gyan Sudha Mishra JJ., order on 11 Jan 2011, Crl Appeal No. 107 of 2011, SLP (Crl) No. 6568 of 2009, Manoj Yadav Vs Pushpa Yadav. Citation No. 2011 : 1 L.W. (Crl.) 520.
9. Wife should clear that she is unable to maintain her. No maintenance to enable wife who deserted her husband. (High Court Karnataka), Bench Hbl J. M. Patil, order on 13-02-1980, Haunsabai Vs Balkrishna Krishna Badigar. Citation Nos. 1981 Cri LJ 110; ILR 1980 KAR 612; 1980 (2) Kar LJ 158.
5 STEPS TO WIN THE INTERIM MAINTENANCE
10. Maintenance on actual earning. (High Court Delhi), Hbl J. Shiv Narayan Dhingra, order reserved 25-07-2008, order on 18-09-2008, CM (M) No. 1790 of 2006 and CM No. 1435 of 2006, Ritu Raj Kant Vs Anita. Citation No. 154 (2008) DLT 505.
11. Maintenance denied for working wife. (High Court Madras), Hbl A. S. Venkatachalamoorthy J., order on 21-06-2002, Kumaresan Vs Aswathi. Citation No. (2002) 2 MLJ 760.
12. No maintenance for capable and working wife. (High Court Maharastra), Hbl J. C. Chitre J., order on 24-03-2000, Smt. Mamta Jaiswal Vs Rajesh Jaiswal. Citation No. 2000 (4) MPHT 457; II (2000) DMC 170.
13. No maintenance to earning wife, only to children. (High Court Karnataka), Hbl K. Manjunath J., order on 22-08-2005, AIR 2005 Kant 417, ILR 2005 KAR 4981, Dr. E. Shanthi Vs Dr. H K. Vasudev.
14. No Maintenance to working wife in 125 CrPC. (High Court Madras), Hbl P. Sathasivam J., order on 21-01-2003, Manokaran @ Ramamoorthy Vs M. Devaki. Citation Nos. AIR 2003 Mad 212; I (2003) DMC 799; (2003) I MLJ 752 (Mad), CMP No. 16264 of 2002.
15. No Maintenance to wife, but only to child. (HC Mumbai), Hbl J. B. L. Marlapalle, order on 18-7-2009, Appeal No. 20 of 2005 and 144 of 2005, Smt. Manju Kamal Mehra Vs Kamal Puskar Mehra. Citation Nos. 2010 AIR (Bom) 34; 2009 (5) AIIMR 798; Legal/ 360.in 114983; LS/Bom/2009/1374.
16. No maintenance U/s 125 CrPC when wife deserts hubby without cause and also she is earning. No Maintenance to capable wife, but only to child and no maintenance to wife living in adultery. (HC Uttaranchal), Hbl J. Alok Singh, order on 18-11-2009, Crl. Rev. No. 201 of 2006, Smt. Archana Gupta & ors Vs Rajeev Gupta.
17. Wife should clear that she is unable to maintain herself. (HC Allahabad), Hbl J. B. Katju, order on 25-03-1976, Manmohan Singh Vs Smt. Mahindra Kaur. Citation No. 1976 Cri LJ 1664.
18. No Maintenance if wife is working. (HC Uttaranchal), Hbl J. Dharamveer, order on 25-10-2010, Crl Rev. No. 88 of 2002, Vikas Jain Vs Deepali @ Ayushi. Citation No. LAWS (UTN) 2010-1-36.
19. Wife living separate troubled in family no maintenance. (HC Madras), Hbl J. P. R. Shiva Kumar, order on 22-02-2008, Crl. R. C. No. 1491 of 2005, Marimuthu Vs Janaki. Citation No. AIR 2003 Mad 212; I (2003) DMC 799; (2003) I MLJ 752.🇮🇳🇮🇳
Tuesday, 7 February 2017
Custody rights of Indian moms (and dads) after divorce
Recently, the Supreme Court had stayed an order of the Gujarat High Court asking a mother to take her eight-year-old son to the United Kingdom, because of a judicial order passed there in a custody battle initiated by her estranged husband. Divorce and custody battles can become a quagmire and the innocent child gets caught up in the legal and psychological warfare between both parents.
Under Indian law, maximum importance is given to the best interests of the child and so either parent does not have a clear primacy to be granted the custody of the child.
After the dissolution of a marriage, custody of a child can be given as:
Joint Physical Custody: A new concept that has evolved while negotiating divorce settlements. Both parents will have legal custody, but one will have the physical custody (child resides with him or her) and will be the child’s primary caretaker.
Sole Custody: One parent has been proven to be an abusive and unfit parent and the other parent is granted custody.
Third Party Custody: Neither of the biological parents are given custody of the child. Instead, the child custody is granted to a third person by the court.
The Guardians and Wards Act, 1890 is the universal law pertaining to issues involving child custody and guardianship in India, regardless of the child’s religion. However, under secular principles, India also sanctions laws pertaining to different religions.
Under secular law as well as Hindu law
The mother usually gets custody of the minor child, under the age of five.Fathers get custody of older boys and mothers of older girls, but it is not a strict rule and is primarily decided based on the child’s interests.The choice of a child above the age of nine is considered.A mother who is proven to neglect or ill-treat the child is not given custody.
Custody under Muslim Law
As per the Muslim Law, only the mother holds the ultimate right to seek her child/children’s custody under the Right of Hizanat as long as she is not convicted or found guilty of any misconduct. The father’s right of Hizanat is applicable only in the absence of an able mother.
Custody under Christian Law
If divorce is inevitable, acrimonious battles cannot be the option to settle issues of child custody and access. Custody of a child only implies to whom the child will physically reside with. Both parents continue to be natural guardians.
The thinking has shifted from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The principle on which custody is decided is the ‘best interests of the child’. Therefore, the parent who can take better care of the child’s emotional, educational, social and medical needs is favoured.
The earning capacity of the parent does not determine custody, but the capacity to provide a safe and secure environment does. Even a mother who is a housewife can gain custody of the child and the father will be asked to provide child support.
The mother is the preferred custodial parent when the child is less than fiveyears old. The opinion of a child who is over nine years old will be considered.
The non-custodial parent can get different types of access to the child based on circumstances and convenience. For example, court could grant weekly, fortnightly, daily or monthly visitation rights. It can be day or overnight access. It could also be free access with no fixed schedule, but as per the parents’ and the child’s convenience.
The parents can agree to a one-time amount or a staggered payment at different stages of the child’s educational life or a monthly payment with incremental increase. The child support should cover the child’s educational and nominal lifestyle expenses.
The court is parens patriae or the ultimate guardian of the child. So the child’s property is protected by law, and terms of custody, visitation and child support can be altered in changed circumstances in the interest of the child.
Other interesting rulings
A Supreme Court bench headed by Justice Vikramjit Sen had ruled that an unwed mother does not have to take consent from the biological father of the child, or reveal his identity for sole guardianship of the child.
The Delhi High Court has ruled that using the mother’s name is sufficient for a child to apply for a passport when the child is being brought up by a single mother without any involvement from the father.