AFFIDAVIT AND ITS DEFINATIONS

Date:- 29.03.2016

                                            AFFIDAVIT

In general Affidavit Means:- 

"A written statement confirmed by oath or affirmation, for use as evidence in court."

DEFINITION OF AFFIDAVITS:

The general clauses act,

The General Clauses Act defines ‘Affidavit’ as a document that include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing. It is a voluntary statement that includes a person’s declaration in writing that is signed by the deponent (person making the affidavit) and accompanied by an oath. In Latin, “Affidavit” means to “pledge ones faith.” It is necessary that the affidavit is witnessed and signed by a notary authority, along with the sign of the affiant. Affidavit is taken to be sort of a written court testimony.

 LAW GOVERNING AFFIDAVITS:

 Section 139, Order XIX of the Code of Civil Procedure and Order XI of the Supreme Court Rules are the laws that govern ‘Affidavits’ in India. The importance of affidavit has been upheld by the courts in many instances.

 "Matters to which affidavits shall be confined - (1) affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated."

 Under Rule 5 of Order XI of the Supreme Court Rules , it is stated that, "Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated."

In Padmabati Dasi v. Rasik Lal Dhar, Calcutta High Court, using Order XIX Rule 3 of the CPC said that every affidavit should clearly express how much is a statement of the affiant’s knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it will be correct to rely on such belief.

In case of M/s Sukhwinder Pal Bipan Kumar and others v. State of Punjab and other it was held that under Order XIX, Rule 3 of the CPC it is  mandatory for the affiant to reveal the nature and source of his knowledge and information with sufficient particulars. It was held that, where allegations are not affirmed, such cannot be regarded as supported by an affidavit as required by law.

 MODE OF ATTESTATION OF AN AFFIDAVIT:

The Court, Magistrate, or other officer as aforesaid, before whom an affidavit is made, shall certify at the foot of the affidavit the fact of the making of such affidavit before him, and shall enter the date and subscribe his signature to such certificate, and shall, for the purpose of identification, mark, date, and initial every exhibit referred to in the affidavit. The name of the verifying authority must be signed in full, and care must be taken that his proper designation as a Civil Court or Magistrate is added.

 CONTENTS OF AN AFFIDAVIT:

 It is necessary that the affidavit containing any statement of facts be divided into paragraphs that are numbered. It is preferred that, each paragraph shall refer to a distinct portion of the subject.

 It is mandatory that, every person, making any affidavit, be described in such manner as will help to identify him clearly, by stating his full name, his father’s name, his profession or trade, and the place of his residence. It is also necessary that those statement that the affiant makes in the affidavit must be affirmed by the words ‘I affirm’.

When the affiant is not in knowledge of a fact himself but, he is informed about such fact by others, he must use the words ‘I am informed’, and, should add ‘and verily believe it to be true’. When the statement rests on facts disclosed in documents, or copies of documents procured from any Court of Justice or other source, the affiant shall mention the source from which they were procured, and state his information or belief as to the truth of the facts disclosed in such documents. A sample affidavit can be accessed here.

NECESSITY IF SCRUITINIZING AFFIDAVIT:

The Supreme Court in Amar Singh v. Union of India and Others has issued directions to the courts registry to carefully scrutinize all affidavits, petitions and applications and reject those which do not conform to the requirements of Order XIX of the Code of Civil Procedure and Order XI of the Supreme Court Rules. The Supreme Court has highlighted the importance of affidavits in this judgment and has discussed various judicial pronouncements on the aspect.

The court in the case of A. K. K. Nambiar v. Union of India and another, said that:

"The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant's petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence."

SIGNIFICANCE OF AFFIDAVIT IF REJECTED:

 Just because a Petition is dismissed does not necessarily mean that the Affidavit contained false evidence. Dismissal means that the petition is not maintainable for whatever reasons which may or may not include perjury. An affidavit (in any matter) submitted to a Court of law, simply means that the Deponent has made the statements contained in his Affidavit, on oath before a person competent to receive such oaths. The statements in the Affidavit would form the basis for the Deponent claiming whatever relief it is that he claims. The Deponent is obliged to state the truth in any Affidavit submitted to a competent authority, and he can be prosecuted for Perjury i.e. giving false evidence on oath, if it is shown that his Affidavit contained any falsehoods. A benchmark judgment of the Supreme Court in this context is:

'Re: Suo Moto proceedings against Mr. R. Karuppan, Advocate, in the year 2004. The Zahira Shaikh case is another example, however the reasoning given re: Evils of Perjury in the Karuppan case is more specific for citation purposes.

 Much earlier former SC Chief Justice Krishna Iyer had also directed that courts must be pro-active and take strict penal action in every case where litigants resort to perjury. The judgment is:- T. Arivandandam vs. T.V. Satyapal and Another, (1977) 4 SCC 467.

Most judges especially in lower courts are overburdened and would not be inclined to take suo moto notice of Perjury. It is therefore necessary for the aggrieved party to file an Application u/Sec.340 Cr.PC. within the main matter, praying for the Court to sanction and initiate action against the opponent for offences of Perjury (which comes under Chap. X of IPC). It will be necessary to show prima facie that the offence was committed with mens rea i.e. with malafide intent / with intent to gain by such malafides. If the Court is satisfied, it will issue a Show Cause notice to the accused Party, or in the case of higher courts, may direct the Registry to file the complaint of Perjury at the concerned court. However, even when this happens, conviction rates are usually low because the trial is statutorily conducted by the Public Prosecutor who is mostly incompetent and indifferent apart from having many other cases to prosecute. The aggrieved party, if he wants justice, should therefore file an Application u/S.302 Cr.PC. to be heard in this matter whenever it comes up at the magistrates court.

CAN WOMEN IS SAID TO COMMIT A RAPE ....????

DATE: 21.03.2016


CAN WOMEN IS SAID TO COMMIT A RAPE....????

The Answer of the question is YES.

A not only Man can commit a Rape but also Women can commit a Rape but can she will be punished for the offence of Rape....???

No. So, Here it comes the fact that i came across while reading... related to the equality... under Article 14 of the Constitution.

I came across this article herein are the facts of the Case:- 

A women is booked for 'raping' son's pal, wherein it is stated that she spiked the minor boy's drink and then raped him (oh! sorry rape is a wrong word here. She forced the minor boy to keep physical relationship, as definition of rape does not include forceful intercourse with male). She also made a video recording of the incident and used to threaten the minor with the video recording who was just 16 years of age. It is also stated that she also threatened the boy with filing of false rape complaint against him.

due to ordeal the boy lost interest in studies and was unable to mix up in the family. His health deteriorated his behavior changed. The news article states that the probe is currently on information of arrest of the accused women is mentioned.

A few questions that come in my mind are:-

1. The identity of the women is not disclosed by media ? If it were a man, his identity including photo would be all over the media.

2. Why there is no information of arrest of women till now ? If this was a man he would have been immediately arrested and people would have been on the streets. He could even have been lynched as happened in the recent past in other parts of India.

This brings us to two conclusions:-

1. We live in the society where male disposibility is the norm. No one is concerned about the ordeal faced by this minor boy in his formative years. The incident is not even termed as rape. It is classified as forced physical relationship thereby undermining it.

2. Why is the perpetrator, who is women in this case, treated with kid gloves and not being subjected to 'EQUAL' treatment. Does Equality only means getting more benefits..?

Let us analysed the Indian Law in this aspect. Forced Sexual intercourse with a minor comes under 2 statutes, 

Indian Penal Code (I.P.C.)

and 

Protection of Children s from Sexual Offences Act. (POCSO).

     

Section 375 of the Indian Penal Code which defined the Rape states:-

A man is said to commit "rape" if he:- 

• Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

• Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

• Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other person; or

• Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

• Under the circumstances falling under any of the following seven descriptions: First.—Against her will.
 Secondly.—Without her consent.
 Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
 Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
 Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
 Sixthly.—With or without her consent, when she is under eighteen years of age.
 Seventhly.—When she is unable to communicate consent.

The starting of the definition is “A man is said to commit “rape” if he”, therefore only a man can commit a rape. A woman cannot commit such an act as per the IPC. Therefore the acts committed, such as above do not find a place here, hence the woman clearly cannot be tried for rape, which is precisely what she did. Therefore this brings us to a point of ‘Equality’; Article 14 of the Constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. Does the minor boy have the same level of protection? Is it equality? Is the law gender neutral? You decide!

Now let us analyse the provisions of POCSO. The statute defines 2 types of sexual assaults on minors: a) Penetrative Sexual Assault, and b) Non Penetrative Sexual Assault. Penetrative Sexual Assault is defined under section 3 of the Act:

 A person is said to commit “penetrative sexual assault” if— (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person If we analyse the definition of penetrative sexual assault, it can “ONLY” be committed by a man, a woman cannot commit such an act (every sub-clause starts with a ‘He’). Therefore in this instant case where the minor boy was sexually assaulted by this woman, it is not defined under penetrative sexual assault. Why; again the definition is ‘NOT’ gender neutral and the minor is not ‘EQUALLY’ protected. Then, what crime is said to be committed by this woman? It is ‘non-penetrative sexual assault’. Yes that is correct it is a minor offense. Let us read the definition of sexual assault as per section 7: Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. So in essence, such a gruesome act comes under the definition of non-penetrative sexual assault. Now what is the difference, would be the next question. The difference friends is the punishment. The punishment for penetrative sexual assault is minimum 7 years extendable to imprisonment for life (Section 4). And the punishment for non-penetrative sexual assault is minimum 3 years extendable to 5 years. So in simple terms we draft our laws in a gender biased manner so that criminal women are treated with kid gloves and let off without any repercussions. Further, crimes committed by them are not even defined as crimes (rape by women does not come under the IPC). No wonder serious crimes by women have increased exponentially. The 2000 American Association of University Women (AAUW) data indicate that 57.2 percent of all students report a male offender and 42.4 percent a female offender with the Cameron et al. study reporting nearly identical proportions as the 2000 AAUW data (57 percent male offenders vs. 43 percent female offenders).

If the incidences of female sexual abusers are as high as 63% then why are the rape laws not gender neutral ? Is 'EQUALITY' not a doctrine enshrined by our constitution..?

Let Us all Stand for a Cause.

Published in Others:-

EVIDENTIARY VALUE OF FIR

DATE:- 17.03.2016

EVIDENTIARY VALUE OF FIR (31st Update)

The police can make three different kinds of statements. The first kind of statement is one which can be recorded as an FIR, the second kind of statement is one which can be recorded by the police during the investigation, and third kind of statement is any kind of statement which would not fall under any of the two categories mentioned above. A substantive evidence is evidence of facts stated, however, these statements which are made to the police cannot be substantive evidence statements. The reason behind this is that it is not tested by cross examination, it is not given in oath and it is not provided during the trial.[1] If the human being making such a statement to the police officer comes to the court during trial and makes the statement corroboration may take place as per the evidence Act.[2]

The FIR has certain evidentiary value, and this value is perhaps much greater than the evidentiary value which would exist with any statement which is made to any police officer during any point of time of the investigation. FIR is definitely not substantive, but, it cannot be doubted that it is an important piece of evidence and is an essential tool to corroborate the informant under §157 of the Indian Evidence Act. Alternatively, it may also be used to contradict him under §145 of the same Act. This is however, only possible if the informant is the witness when the trial is taking place.[3] 

The Indian Evidence Act implies that when there is a need for corroboration of testimonies of the witness (any kind of witness) the section that gets activated is §157 which says that for there to be corroboration of any form the earlier statement must relate to the same fact or the same time, it must also be before an authority which has the legal competence to conduct investigation of the particular fact which is being discussed, and needs to be proven in the court.[4]  Another section which comes into play is §145 of the Indian Evidence Act which states that a witness can be cross examined w.r.t statements which have been made by the witness and he must have either written the statement himself or it must have been written down by somebody else. This is the case for contradiction of the witness and therefore writing is important in this case.[5] To prove that their case is credible and believable the prosecution must show that there was proper recording of the FIR. This can help to stop the court from drawing an inference which is adverse. The accused should try to cross examine the person who made the FIR (the informant) and show that it is not credible or believable and this is the job of a good defense lawyer. The FIR is a kind of evidence whose contradictory value is only for the person who has lodged the FIR (the informant) and it cannot be used to contradict the statement made by any other person, witness[6]. It necessarily has to be the person who is informing the police about the crime at the first instance.[7] The accused can utilize the FIR to make the person lodging the FIR look less credible and therefore make the value of the FIR as a piece of evidence goes down.[8]. However this is only applicable to the informant and not to any other person. Even if the informant is  contradicted and the FIR loses some credibility the other witness are enough for conviction of the accused, that is, the value of the FIR is not that substantial.[9] Sometimes the maker of the FIR is the accused himself. In this case, it cannot be used as any kind of evidence against him. It has been held by the Supreme Court of India that the FIR is not a substantive piece of evidence and the corroboration of the maker under Section 161 of the Indian Evidence Act or Contradiction under the same act is the only thing possible. The court went on to hold that if the maker is also the accused even this is not possible. The Supreme Court, on another occasion in the case of Ram Chander v. State of Haryana[10], has held that the contents of the FIR can only be used for contradiction and corroboration of the maker and not any other eye witness. In general, an FIR’s content is solely for the purpose of contradiction and corroborations. However, certain situations may arise when the contents of an FIR can be used for other purposes. For instance, when essential facts are omitted which end up affecting the probability of the case (relevant under §11 of IEA) in judging whether or not the prosecution case is true.[11] If certain information report has been suppressed then the prosecution must explain and be responsible for suppression of this kind. And if the court of law gets to know this then they can definitely be led to assume that there is certain prejudice to the accused and §114 plays out.[12] The question that is often asked is why the FIR can’t be used for contradiction or corroboration of the accused. This is because the accused can’t be up as a prosecution witness and it is very rare that he would want to be up as a defense witness. The second question that arises is if the FIR is of a confessional nature, then is cannot be proved against him because of §25 of the Indian Evidence Act. This section says that any kind of statement made to a police officer cannot be used against the accused person. However, there are certain situations in which the FIR made by the accused can become relevant. First, when the FIR lodged by him could be relevant under the 8th section of the IE Act as his conduct. Second, If the FIR is non confessional than it can be admissible as admission[13] Third, if there is discovery of fact, it can be used against him.[14] If the informant ends up dying then the FIR can definitely be used as substantive evidence. But, the condition is that it must in some way relate to the death of informant or somehow related to some form of evidence having a link to the death of the informant. This is derived from §32 of the Indian Evidence Act[15]  It was held in the case of Kapoor Singh v. Emperorthat the FIR which has been lodged by a deceased  person can be admissible as evidence if relating to circumstances surrounding his death. [16] The courts of this land have also said that an FIR can be a dying declaration if the informant dies of his injuries after lodging the same. [17] This is important to note because had he died of reasons other than the injuries (for example, a natural death) then it cannot be considered a dying declaration.[18] However, when the FIR clearly implicates the person who is the accused and contains the details of the incident this is not considered to be a dying declaration[19] It is also essential that there be certainty around the death of the individual and not just disappearance. An FIR by a deceased is not substantial and shouldn’t have any bearing on the case if the contents aren’t proved. It has to be corroborated and proved for there to be any value of the same in the case.[20] If the informant died during the trial, and the prosecution starts to treat the FIR as a dying declaration without ascertaining the questions as to his death, then is cannot be a dying declaration. This was iterated in Sukhar v. State of U.P.[21]

Following are some Cases:-

• In the case of Maniram v. State of MP.[22], the dying declaration was recorded but the doctor did not attest to the consciousness of the deceased. Since the thumb signature of the deceased was also not taken there was doubt on the credibility of this FIR.
•  K.N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure,( 5th ed 2001),119

• Hasib v. State of Bihar, (1972) 4 SCC 773
• Nisar Ali v. State of U.P., 1957 CrLJ 550 SC
•  Damodar Prasad v. State of Maharashtra ,AIR 1972 SC 622
•  Shanker v. State of U.P., AIR 1975 SC 757]
• Dharma Rama Bhagare v. The State of Maharashtra, (1973) 1 SCC 537.
• In this case, the contents of the FIR were at variance with the testimony of other witnesses in Court. The submission of the appellant before the Supreme Court was that because of this the prosecution evidence must be considered unreliable and hence, cannot form a safe basis for holding the appellant guilty.

[1] (1981) 3 SCC 191.[2] Ram Kumar Pandey v/s State of M.P ,(1975)3SCC 815[3] (A.I.R. 1967 Cal. 478).[4] Nisar Ali v. State of U.P. 1957 550 SC[5] Agnou Naagesia v. State of Bihar,1966 CrLJ 100 SC][6] Damodar Prasad v. State of U.P,. AIR 1975 SC 757[7] Kapoor Singh v. Emperor ,(AIR 1930 Lahore 450)[8] Munna Raja v. State of M.P., (AIR 1976 SC 2199) [9] Umrao v. State of M.P., AIR 1961 MP 45[10] Pancham Yadawa v. State of U.P., 1994 CrLJ 848 (All)[11] E.J.Goud & others v. State of A.P., 2004 (2) ALD (CRL)241 (AP)[12] Sukhar v. State of U.P., (1999) 9 SCC 507[22] Maniram v. State of M.P., AIR 1994 SC 840

DIVORCE PROCEDURE IN INDIA

DATE:- 12.03.2016

CAUTION:- 

This document is prepared in generic aspect and only for basic understanding about the divorce process in India, the facts mentioned here may vary from case to case. Please visit a lawyer to get the right information.

Advice:-

The court procedures are time consuming and conservative. Try to negotiate the matter outside court and if that doesn't work out then proceed with the court. Before making a decision of separation from each other (i.e. from your spouses) see if the things can work out between two. Because Lawyers/Councils are not only there to follow appropriate proceedings but they are there to help peoples to save there relations and still if things are not moving then lawyers are bound to take you by legal procedure. But in such case the patience and your trust on lawyer appointed by you to take you from this procedure is must because divorce procedure in India extents for almost a year and in some special cases of disputes the procedure may continue for years. The long distressing process of divorce will be easier for you to handle if you have a firm determination to get the divorce.

 The entire process of divorce that starts from coping up with emotional ups and downs to contesting for the long awaited divorce decree for several months is definitely a tough affair to get through. Before opting for a divorce you should be aware of the fact that a divorce procedure in India extents for almost a year and in some special cases of disputes the procedure may continue for years. The long distressing process of divorce will be easier for you to handle if you have a firm determination to get the divorce.

DIVORCE UNDER VARIOUS ACTS

Due to existence of diverse religious faiths in India, the Indian Judiciary has implemented laws separately for couples belonging to different religious beliefs.

·         The Hindu Marriage Act, 1955

·         The Parsi Marriage and Divorce Act, 1936

·         The dissolution of Muslim Marriage act, 1939

·         The Parsi Marriage and Divorce Act, 1936

·         The Special Marriage Act, 1956

·         The Foreign Marriage Act, 1969

With the advancement of time and social awareness, several acts have been passed by the government to make the present day divorce procedure in India more progressive with respect to gender affairs and related sensitive issues. The Muslim Women Act 1986 was passed to protect the rights of Muslim women on divorce. For inter caste and inter- religion marriages the divorce laws are approved under The Special Marriage Act, 1956.

A contested divorce is filed on the grounds that are mentioned in the acts passed out separately for different Indian religions.

For a mutual divorce procedure in India, you can come to an agreement with your spouse where you may resolve all kinds of disputes regarding maintenance, custody of children and such.

Under Section 13B of the Hindu Marriage Act, a husband and wife can file a mutual divorce only when they have lived apart for at least a year. The couple must jointly mention about their inability to continue the marital relationship due to some unavoidable circumstances. Both the sides must voluntarily agree to dissolve the marriage.

The filing of a mutual divorce by both the husband and the wife is termed as 'the first motion'. A couple can file for a second motion after a gap of six months. The six months time span is provided to the couple so that they get the time to reconsider their marriage.

A divorce decree can be passed before the completion of the six months term if all the mandatory requirements for the divorce are sufficed. If the divorce file is not withdrawn within eighteen months the court passes a divorce decree. Incase one of the sides withdraws his/her petition the court initiates to make an enquiry. If the concerned side disagrees to give the consent, the court holds no right to pass the divorce judgment.

Divorce is the legal dissolution of marriage. Since India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking divorce. All Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955. The Muslim, Christian and Parsi communities, on the other hand, have their own laws governing marriage and divorce. Spouses belonging to different communities and castes can seek divorce under the Special Marriage Act, 1956. There is also the Foreign Marriage Act 1969, governing divorce laws in marriages where either partner belongs to another nationality.

DIVORCE BY MUTUAL CONSENT

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a "no-fault divorce" under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

PROCEDURE FOR FILING DIVORCE

The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconcilable differences,they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or "streedhan" and litigation expenses.

However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an enquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties.

However, not all estranged couples agree on the desirability, grounds or the conditions of divorce. In such cases, one party files for divorce in the court, but the other contests it. This forms the case for the filing of a contested divorce. Some of the grounds on which either spouse can file for a divorce in India are:

Adultery on the part of the spouse of the petitioner, or any other sexual relationship outside marriage. Willful desertion or abandonment of the petitioner by the spouse, for a continuous period of two years in India, before the date of the filing for divorce. Infliction of physical and/or mental torture on the petitioner by the spouse, which may result in danger to life and health of the former. Sexual impotency or inability to perform sexual intercourse by the spouse of the petitioner. Insanity or suffering from incurable disease by the spouse of the petitioner.

The actual process of filing for divorce, however, begins with the hiring of a lawyer. The importance of having an efficient lawyer cannot be over-emphasized, if one is to get through the complexities of the legal system in India. So whether a person is filing for divorce or contesting one, he/she should see that the lawyer is not only well-versed with laws related to marriage and divorce under the relevant marriage act, but also has adequate experience in guiding his/her client to the best possible divorce deal from the court.

After the petitioner and his/her lawyer have decided on which grounds to file for divorce, a divorce petition is formally drafted and filed in the relevant court. The petitioner is required to provide his/her legal representative with photocopies of the following documents:

·         Income tax statements for the last 2-3 years

·         Details of the petitioner's profession and present remuneration

·         Information related to family background of the petitioner

·         Details of properties and other assets owned by the petitioner

Here it may be mentioned that it is in the interest of the petitioner, to provide all details of his/her marriage to the lawyer. This will not only include facts related to when and where the petitioner and spouse got married, but also details on how problems cropped up in their marriage and the events that finally led to the petitioner seeking divorce. The more honest the petitioner is with the lawyer, the easier it will be for the latter to present a strong case for his/her client.

After the first petition for divorce has been filed, the petitioner can sign a "vakalatnama" is which a document giving the lawyer the authority to represent the petitioner in court. After the petition has been received by the court, it will send a notice and a copy of the petition to the estranged spouse of the petitioner, asking him/her to appear before the court on a specified date. From here on, the legal process of seeking a contested divorce will take its own course.

DIVORCE ALIMONY

A divorce is not just a dissolving of a personal relationship. Since marriage is a social institution, its dissolution has far-reaching consequences on the whole family. And these consequences are both emotional and financial. The worst sufferers of divorce are women, who are not only find themselves bereft of the means to acquire basic necessities like food, clothing and shelter, but are also left to take care of the children from a broken marriage. To protect their interests, the Indian legal system has consistently tried to better the financial situation of women, by provisions of alimony.

Alimony is the financial support that a spouse is required to provide an estranged partner during and after a divorce. Alimony is usually granted to women, since they are traditionally homemakers, and thus find it difficult to support themselves and their children after a divorce. However, due to the concept of equality of the sexes and with increasingly economic independence of women, alimony can now be sought by either spouse, depending on the particular financial condition of each. Some of the factors which determine whether alimony is to be paid, how much and for how long are:

·         Current financial support. Alimony is generally not granted by the court to the seeking party if the latter is already receiving financial support, during the time of the divorce.

·         Duration of marriage. The quantum and duration of alimony depends on how long the couple had been married before filing for divorce. Spouses who have been married for more than ten years, for instance, may be granted lifelong alimony.

·         Age of the recipient. Often the alimony granted to a younger spouse is for a shorter tenure, if the court thinks that the recipient can eventually become financially sound, with career advancement.

·         Financial position of either spouse. If the divorce takes place between two parties with unequal resources, the higher-earning spouse is generally asked to pay a substantial amount as alimony, in order to equalize the financial condition of the spouses. Similarly, a spouse with very profitable financial prospects is usually asked to cough up the alimony amount.

·         Health of spouse. If the seeker is in poor health, the court usually orders the other spouse to pay a high alimony to take care of the former's healthcare expenses.

·         Respective marriage laws. The terms and conditions of alimony, also vary from one personal law to another. Thus, whether and how much alimony the seeker will be granted, will depend upon the laws according to which he/she got married.

·         Maintenance by public body. In exceptional conditions, the court can direct that the seeker be paid maintenance after divorce, by a public body.

·         While in the Western countries, alimony is an obligation ordered by the court to the financially stronger spouse, in India it is not yet an absolute right of the seeker. Rather the awarding of alimony, its amount and duration are determined by the financial position and family circumstances of the respective spouses.

·         Child custody:-

    

    Another aspect of divorce which leads to a great deal of emotional trauma and legal complication, is child custody. This is because divorce entails the breakdown of the entire family. The child is not only separated from one of the parents, but may also lose other siblings and the wider extended family. The Hindu Marriage Act 1955, has exhaustive laws related to child custody and child support. If the child is below five years, the custody is unanimously awarded to the mother. In case of older children, the custody of a girl child is generally given to the mother, and that of the boy child to the father. Visitation right is an important aspect of child custody, which specifies how frequently of the estranged parent can meet his/her children.

·         Child support is intricately linked to child custody, since it is most practical for the parent taking care of the child, to receive financial support for bringing up the child. In an overwhelming majority of divorce cases, it is the mother who is entitled to child support, since she is the primary caretaker of the child or children post-divorce. However, like alimony rights, child custody and support are also of subject to respective marriage laws of the estranged couple. In case of divorce by mutual consent, the parents should to take the help of a lawyer in order to thrash out the details of child custody and child support. In cases of contested divorce, on the other hand, the receiving parent is best advised to make a strong claim for child support, under the guidance of her lawyer. Finally, it is up to the court to specify the amount and duration of child support, where the divorce is being contested.

NRI DIVORCE

While the procedure of getting a divorce in India is protracted enough, the situation gets further complicated if the marriage involves one or both non-resident Indians. The Indian legal system does not have very exhaustive divorce laws for marriages with or among non-resident Indians. However if a couple has got married in India under the Hindu Marriage Act 1955, the partners can file for divorce by mutual consent, like other Indians residing in the country. If both the spouses are residing in a foreign country, Indian law will recognize their divorce according to the laws of that country, only if it is by mutual consent. Even when the divorce is taking place abroad, it is always better to hire a lawyer who is aware of Indian divorce laws relating to non-resident Indians.

The whole procedure of going through a divorce in India is fraught with emotional, social and legal complexities. Besides being an exceedingly traumatic personal experience, partners, especially women, going through divorce face discrimination from their communities and even their families. Moreover, the long drawn-out litigation creates pressure on already stretched resources. However, there are several state agencies as well non-government organizations, which offer legal and emotional counselling and sometimes even financial aid, for spouses going through divorce. The important thing is to keep one's courage through it all and continue to fight for one's own well being.

DIVORCE AND MAINTENANCE

In India, family courts can pass an interim order on maintenance to a spouse when s/he is separated from the other spouse with minor marital conflict, with a decree of judicial separation or if one of the spouses has applied for divorce. So, a lawsuit for divorce or judicial separation is not mandatory to apply for monthly maintenance.

Interim maintenance order remains valid till the permanent maintenance order is given by the court during the divorce.

The maintenance amount is calculated (approximately) by taking into account the total monthly take home income (i.e. without tax) of both the spouses. The educational background of the spouses, the number of years of marriage, number of children and child custody are also major factors, which govern the maintenance amount. Maintenance amount can also depend on who well the lawsuit has been fought by the advocates of both parties. The spouse with lesser income or no income can get a maintenance amount, which will make his/her complete earnings (plus maintenance) to be equal to 20% to 30% of the above total monthly income.

For example, if the husband has a take home income of one lac per month and the wife has a take home income of twenty thousand and they have no children in a marriage of 2 years, then the wife can theoretically get Rs.4000 as maintenance. How? The total take home income is one lac and twenty thousand and twenty percent of it comes to Rs.24,000. So, the woman gets Rs.4000 per month, so that her total income (her income+maintenance) becomes Rs.24, 000.

If the couple have a child and the woman has the child custody, then she may get a maintenance amount of Rs.10,000 to Rs.16,000 per month so that her total income becomes Rs.30,000 to Rs.36,000 per month. Apart from that there can also be a judicial order defining the details on how the expenses for high studies of the child are shared. If the child decides to stay with the father after the age of 5, then the maintenance amount to the woman gets reduced accordingly.

If a woman's income is at least half of her husband's income, then most often she may not get any maintenance.

Similarly in a marriage of six months, if the wife is not working, but she has a masters degree and the husband has a monthly take home income of rupees one lac, then she may get a maintenance amount between Rs.8,000 to Rs.12,000 per month. Why? Because the argument would be that she has the capability to work and support herself.

Sometimes, the wife is also ordered to pay maintenance to the husband when the husband has a very small or no income compared to his wife's income. In recent past, such orders are passed by high courts in Cuttack and Lucknow much to the annoyance of some feminists and media. But, laws have to be the same irrespective of gender. Is not it?

So, economically empowered women do not get maintenance or they may even have to pay maintenance to their husbands in case of divorce.

The maintenance amount can get higher if its a long marriage. The parents can also claim maintenance from their grown up earning children. Even though, it is not clear, if they can claim maintenance from their earning daughters as today daughters have equal property inheritance rights.

It must be noted that neither the husband nor the wife can make claims on the property(residential or otherwise) of the other during divorce. So, some intelligent men make sure to get residential property registered only in their name, when they apply it through a bank loan. But, most other foolish men (being misguided by the builders) register the property in joint names, while its the man who pays fully for the bank EMIs. In case of marital conflict and divorce, the condition of such men becomes extremely miserable as they are already under a debt of rupees 20 lacs to 30 lacs and the wives make a claim on it apart from the maintenance they may get in the court. I know, some other men asking their working wives to pay for half of the property and loan so that the property can be registered in both names. These wives sometimes start complaining that he is asking dowry as they feel its only a man's duty to provide for the family and the common expenses.

A woman or man stops getting maintenance from his/her spouse once s/he gets remarried unless they have a child. So, often women ask for a one time out of court settlement (or alimony) in stead of divorce. The man may agree to it or he can decline to it saying that he would prefer to give monthly maintenance.

For young guys (say techies within age group of 25 to 30) in marital conflicts, the maintenance amount given to their non working wives can be between Rs.2000. to Rs.7,000 (if they earn a salary between Rs.18,000 to Rs.50,000) provided they have no children.

So, often lawyers advise the women to file false dowry cases, so that the woman can force the guy to pay up a huge settlement/alimony (out of the court) in stead of going for a monthly maintenance. A monthly maintenance of Rs.3000 is in no way comparable to an one time alimony of Rs.10 lacs. But, the guy becomes bankrupt in such a situation as he ends up not only losing all his savings, but also takes loan from family and friends. He not only pays the alimony, but also ends up spending time in jail with his family, loses reputation, may be even the job, pays bribes to the police to stop harassing his family and the huge legal expense for bails and fighting the multiple cases. There is no way he can think of marrying again as he simply has no money to pay for even the marriage expenses. Of course, the painful experience can also keep him miles away from the very word marriage. On the other hand, the woman's dowry case is fought by the public prosecutor(i.e. the lawyer from the State paid by the taxpayer's money).

Its is alleged by some that the lawyers of both sides may also profit from this kind of a settlement. Its not at all surprising, if a husband finds himself cornered by his own lawyer, who keeps on pestering to go for a settlement, pay alimony, marry another girl (immediately) and live happily ever after.

The child is an important factor in a marital conflict, especially when the child is below the age of five. Fathers have natural right to child visitation. But, women can often evade the instructions/law and deny child visitation rights to the fathers. I have seen such fathers being allowed to meet their children once in a week or two just for an hour in the family court complex in Bangalore as in the police keeps dragging chained criminals into the vehicles in the background.