Category Archives: Family Law

Protesting the Pill

Posted on by
Reply

On June 7, 1965, the U.S. Supreme Court found married couples had a right to privacy in the US Constitution in the case of Griswold v. Connecticut. The case involved an 1879 Connecticut law which prohibited the use of contraceptives. The decision was passed by a vote of 7:2. However, one of the dissenting judges, Justice Stewart, described the statute as being ‘an uncommonly silly law’, although he held that it was constitutional.

The decision enabled planned-parenthood advocate Estelle Griswold to sell birth control pills legally; she had earlier been doing so illegally.

The American Life League has chosen June 7 to be ‘Protest the Pill Day ’08: The Pill Kills Babies’. The organisation is a radical pro-’life’ organisation which is committed to telling people that birth control pills supposedly kill babies.

Maintenance under the CrPC

Posted on by
2

Earlier, there was a limit to the amount of maintenance payable under the Code of Criminal Procedure. However, an amendment to Section 125 removed this limit and the maintenance which can be ordered under this Section is no longer limited to 500 INR per month as was the case earlier.

Although Section 125 does not aim to benefit those belonging to any particular religion, its use by Muslim wives was curtailed by the Muslim Women (Protection of Rights on Divorce) Act, 1986.

However, according to a report in the Indian Express, the High Court of Bombay at Aurangabad has said that a Muslim woman is entitled to maintenance under Section 125 of the Code of Criminal Procedure if the Talaq is not valid. In this case, the husband’s own version did not reveal a credible reason for divorce and in addition to that, there was no attempt at reconciliation prior to the divorce as is required under Supreme Court guidelines.

Section 125. Maintenance

If a person who has sufficient means neglects or refuses to maintain:

  1. his wife, unable to maintain herself, whether or not he is divorced from her or
  2. his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
    (If the child is a married daughter, maintenance is to be paid till she attains majority if her husband does not possess sufficient means.)
  1. his legitimate or illegitimate adult child who cannot maintain itself because of any physical or mental abnormality or injury
    (This does not include a married daughter.)
  1. his father or mother, unable to maintain himself or herself,

he can be ordered to pay maintenance to those persons by the Family Court in places where a Family Court has been established or by a JMFC in other places if the neglect or refusal is proved.

The Court may order him to pay a monthly allowance as maintenance of his wife or such child, father or mother as it thinks fit to the person.

The allowance is payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

If any person so ordered fails without sufficient cause to comply with the order, the Court may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. However, no warrant shall be issued for the recovery of any amount due under this section unless application is made to the Court to levy such amount within a period of one year from the date on which it became due.

If such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, the Court may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

A wife is not entitled to receive an allowance from her husband if she is living in adultery, or if, she refuses to live with her husband without any sufficient reason, or if they are living separately by mutual consent.

On proof that any wife in whose favour an order has been made is living in adultery, or that she refuses to live with her husband without sufficient reason, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Section 126: Procedure

Proceedings under section 125 may be taken against any person in any district:

  1. where he is, or
  2. where he or his wife, resides, or
  3. where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

All evidence in such proceedings is taken in the presence of the person against whom an order for payment of maintenance is to be made, or, when his personal attendance is dispensed with, in the presence of his pleader. It is recorded in the manner prescribed for summons-cases. However, if the Court is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, it may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as it thinks is just and proper.

The Court in dealing with applications under section 125 has the power to make such order as to costs as may be just.

Section 127. Alteration in allowance

On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as case may be, the Court may make such alteration in the allowance he thinks fit.

Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Court shall, if it is satisfied that:

  1. the woman has, after the date of such divorce, remarried, cancel such order as from the date of her remarriage;
  2. the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order:
      1. in the case where, such sum was paid before such order, from the date on Which such order was made,
      2. in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman;
  3. the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date of the divorce.

At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the Civil Court takes into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.

Section 128: Enforcement of order of maintenance

A copy of the order of maintenance is given without payment to the person in whose favour it is made, or to his guardian, if any or to the person to whom the allowance is to be paid.

The order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due.

Child’s Welfare of Paramount Importance to Decide Custody

Posted on by
Reply

In the case of Mausami Moitra Ganguli v. Jayant Ganguli, 2008, a Bench of the Supreme Court comprising Justices C K Thakker and D K Jain held that the child’s welfare is the primary factor in deciding in whose custody the child should be placed.

The question in the case was whether the father or the mother should have the custody of an almost ten year old male child. The child’s parents got married on April 18, 1996. On May 28, 1998, a boy, named Satyajeet was born from the wedlock.

However, within a short time, the relationship between the spouses came under strain. The wife, who was employed as a teacher, felt that her husband had misrepresented his occupational status to her, was addicted to alcohol and smoking, had contacts with anti-social elements and had physically abused her.

After moving out of her marital home leaving her son behind, she filed a suit for divorce against respondent which was decreed ex-parte on September 12, 2002. Since no appeal was preferred by the respondent against the said decree, it attained finality.

She then moved a petition on April 5, 2003 under Sections 10 and 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956 before the Family Court, Allahabad seeking a declaration in her favour to be the lawful guardian of her minor son, Satyajeet and a direction to the respondent to hand over the custody of the child to her.

The application was hotly contested by her ex-husband and the matter ultimately reached the Supreme Court. In its judgment the Court discussed the principles related to deciding which parent should be granted custody of a child, inter alia, saying:

“The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.

The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.

In Rosy Jacob Vs. Jacob A. Chakramakkal, (1973) 1 SCC 840, a three-Judge Bench of the Supreme Court in a rather curt language had observed that the children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.

In Halsbury’s Laws of England (Fourth Edition, Vol.13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms:

’809. Principles as to custody and upbringing of minors. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other.’

The stability and security of the child is also an essential ingredient for a full development of child’s talent and personality.”

In this case although the Supreme Court decided that the father should have exclusive custody of the child, it said that visitation rights to the mother deserve to be maintained.

(This is an edited extract of the judgment.)

Defining Dowry: Not a Gift to a Baby

Posted on by
Reply

The Dowry Prohibition Act, 1961 says, “Dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage; or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage, in connection with the marriage of the said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. The expression ‘valuable security’ has the same meaning as in section 30 of the Indian Penal Code.”

In yet another case defining what dowry is, the Supreme Court has held that demand for presents to a child do not fall within the ambit of dowry and that mere evidence that a woman has been subjected to harassment does not in itself make out a case of dowry death as defined by Section 304B of the Indian Penal Code which says:

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

In this case, a woman named Jagadeshwari committed suicide by setting herself on fire after her husband, Narayanamurthy from Karnataka, and his parents, Kannappa and Shivabhushanamma, demanded a gold ring and silverware for on the occasion of her new-born child’s thread-changing ceremony which was to be held at her parents’ home.

Jagadeshwari’s family could not afford to give the child a ring and so, Narayanamurthy refused to take part in the ceremony.

The marriage of the couple had taken place in 1989 and was harassed by her husband and in laws for not having brought enough dowry right from the time of the wedding till the time of her death — she committed suicide on November 11, 1990.

After her death, both her husband and her in-laws were charged with offences under Sections 498A and 304B of the Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961.

Section 498A of the Indian Penal Code says:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: For the purposes of this section, ‘cruelty’ means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

And Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961 deal with the penalties for taking and demanding dowry and say that dowry to be for the benefit of the wife or her heirs.

The father-in-law died while the trial was underway and both the husband and mother-in-law were acquitted by the Trial Court for lack of evidence.

The Karnataka High Court subsequently convicted her husband under Section 304B of the Indian Penal Code on appeal and sentenced him to seven years of rigorous imprisonment. It also convicted him under Section 498A of the Code and fined him 5,000 INR. However, it upheld his acquittal under Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. Also, it did not find Shivabhushanamma guilty of any offence.

The Supreme Court upheld the acquittal of the mother-in-law also acquitted Narayanamurthy saying that although he had been given silverware at the ceremony, “such gifts are not enveloped within the ambit of dowry”.

Link

Bigamy

Posted on by
Reply

There are two Sections in the Indian Penal Code which deal with bigamy. The first deals with bigamy with the second ‘spouse’ knowing of an earlier marriage which is legally valid at the time of the subsequent marriage and the second deals with bigamy without the second ‘spouse’ knowing of an earlier marriage. In both cases, the subsequent marriage is void.

Section 494, IPC: The offence of bigamy involves marrying again during the life of one’s husband or wife. The second marriage is void by reason of its taking place during the life of such husband or wife. The offence is punishable with either simple or rigorous imprisonment for a term which may extend to seven years, and offenders are also liable to fine.

However, this section does not extend to any person whose earlier marriage has been declared void by a court of competent jurisdiction. Further, it does not apply to any person who contracts a marriage during. the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, has been continually absent from such person for the space of seven years, and has not been heard of by such person as being alive as would have heard from him had he been alive within that time provided the person contracting such subsequent marriage, informs the person with whom such subsequent marriage is contracted of the real state of facts so far as the same are with in his or her knowledge shall, before the second marriage takes place.

Section 495, IPC: Whoever commits bigamy having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with either simple or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Grounds of Divorce under the HMA

Posted on by
Reply

According to Section 13 of the Hindu Marriage Act, 1955, any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either spouse, be dissolved by a decree of divorce on any of the following grounds:

1. the other spouse has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse
2. the other spouse has, after the solemnization of the marriage, treated the petitioner with cruelty
3. the other spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition
4. the other spouse has ceased to be a Hindu by conversion to another religion

5. the other spouse has been incurably of unsound mind, or has 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. “Mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia; and “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment
6. the other spouse has been suffering from a virulent and incurable form of leprosy
7. the other spouse has been suffering from veneral disease in a communicable form
8. the other spouse has renounced the world by entering any religious order
9. the other spouse 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. “Desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.

Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on any of the following grounds:

1. that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties
2. that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on any of the following grounds:

1. in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner provided that in either case the other wife is alive at the time of the presentation of the petition
2. that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality
3. that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, or under corresponding Section 488 of the Code of Criminal Procedure, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards
4. that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Law (Amendment) Act, 1976.

Custody of Children under the HMA

Posted on by
Reply

Section 26 of the Hindu Marriage Act says the Court may, from time to time, pass interim orders and make provisions in the decree as it deems are just and proper with respect to the custody, maintenance and education of minor children in any proceeding under the Hindu Marriage Act (of divorce, judicial separation, etc.).

This is done taking the wishes of the children into consideration wherever possible.

The Court may also from time to time make all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders after the decree. This is done upon application by petition for the purpose.

Further, the Court may from time to time revoke, suspend or vary any such orders and provisions it had previously made.

Earlier, the trend was to grant custody of minor children to their mother. However, in recent years, Courts have become far more flexible and there are an increasing number of cases where the father is granted custody. In one such case, that of Mausami Moitra Ganguli v. Jayant Ganguli, 2008, which although not filed under the Hindu Marriage Act, the Supreme Court held that the child’s welfare is the primary factor in deciding in whose custody the child should be place.