Family Law

How to get Mutual Consent Divorce?

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Mutual consent Divorce Procedure and complete guide

What is Mutual Consent Divorce?

Mutual consent divorce is a process by which martial status of a married couple comes to an end. This is one of a way to get divorce and most easiest form compared to other forms like Divorce by Desertion, cruelty, Adultery etc. This mode of divorce is normally called uncontested form of divorce and is envisaged in Section 13B(1) and 13B(2) of Hindu Marraige Act 1955. This form is commonly known as first motion and second motion divorce petition both petitions separated by 6 months period.

Procedure to get Mutual Consent Divorce

Here are some of the requirements of getting divorce by mutual consent

  1. Mutual consent

As the name suggest Mutual consent divorce first requirement is that there must be a mutual consent between the couples. That means all issues between them like custody of children, maintenance, alimony have been resolved between them and only they intend is to get a divorce only. There is also a separation period between the couple of not less than one year. the divorce by mutual consent

How to come to a mutual consent

The husband and wife sit together either with the help of close relatives, lawyers or in mediation. They first decide custody and visitation rights of children and their custody normally custody of children goes and decided mutually in favor of wife and husband do get visitation rights if this is decided then they proceed ahead with issues related to maintenance and alimony to wife. Normally husband agree on lump sum and one time  payment of fixed amount in favor of wife and wife on the other hand will not demand any maintenance or alimony in future. only when all the above issues are resolved the mutual consent divorce is possible.

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Mutual consent Divorce

2. Preparation of Mutual consent divorce agreement

After oral discussion its now time to get it on paper here at this stage mutual consent agreement is prepared and which is a detailed documents of whatever has been agreed between the couples they are bound by it. the mutual consent agreement has to be notarized and signed in front of notary public.

3.  List of documents for mutual consent Divorce

  1. Petition of mutual consent divorce both motions along with waiver of 6 months cooling off application in case you wish to waive off 6 months waiting period between two motions. if other spouse is in other country then power of attorney of other spouse.
  2. 4-5 recent photographs to be pasted on petition and agreement.
  3. Proof of marriage which includes either Marriage card with marriage photographs or marriage registration certificate with marriage photographs.
  4.  Id card with address proof

Note: you must carry originals at time of court hearing.

4. Court Hearings

At the time of court hearing you must reach on time and all originals must be carried by you at the time of hearing. Once your matter name is called you must be ready to answer questions put up be judge.

  1. Common questions like date of marriage and separation?
  2. custody of children?
  3. Consent is without any coercion or undue influence?

After basic questions the couple move ahead for verification of original document and hearing is concluded once they sigh on their respective statements.

Conclusion of Mutual consent divorce Proceedings

After the conclusion of both first and second motion court hearings the court will prepare a decree of divorce which is a formal document of divorce and officially couples are separated by decree of divorce and process is concluded.

By Adv. Nitish Banka

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Advocate

Nitish Banka, a Member of Bar Council of India is practicing in the field of Matrimonial, Civil and Criminal law as well as corporate legal consultant to various firms.  

some Landmark Judgments you must use in interim maintenance arguments

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Interim Maintenance Arguments important judgments

If you are from the Husband side and your wife is capable of earning and having good qualifications and if you are unemployed then how will you defend the interim maintenance case  filed by wife.

Here are the few judgments which you must use to fight interim maintenance cases  these judgments are handy.

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Smt. Mamta Jaiswal vs Rajesh Jaiswal 2000 (4) MPHT 457 spouse who is well qualified to get the service immediately with less efforts are not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut pendente life alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose.

In Sanjay Bhardwaj & Ors. vs The State & Anr.  wherein while considering the provisions relating to maintenance under The Protection of Women from Domestic Violence Act, 2005 (D.V. Act) and other prevalent laws like Hindu Adoption and Maintenance Act, 1956; Hindu Marriage Act, 1956 and Section 125 of Criminal Procedure Code (Cr.P.C.), it was held that, “a husband is supposed to maintain his un- earning spouse out of the income which he earns. No law provides that a husband must maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell ask husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both claimed to be gainfully employed before marriage”.

In Sakarben Shambhubhai Rabari & vs Shambhubhai MasharubhaiRabari  while   fixing   the   quantum   of  maintenance,  the  Court  has to take  into  account  not   only   the   needs   of   person   who   claims  maintenance   but   also   the   capacity,   status,  commitments and the obligations of person who has  to pay it. If the husband has to maintain other persons   like   his parents, etc.   reasonable allowance for their maintenance shall have to be made. It would be unjust to grant maintenance in an arbitrary   manner.   The   party   who   has   to   pay maintenance is also not to be virtually rendered a destitute. A fair balancing of all the relevant factors   is   to   be   done   by   the   Courts without making an emotional approach to the problem. The court shall have to keep in mind that what is to be provided is the

maintenance and it cannot have saving element in it nor is it the purpose of the legislature   to   put   the   claimant   in   a   luxurious position. The definition of maintenance given by the Act   makes   this   position   amply   clear.

The Hon’ble Supreme Court in Manish Jain Vs. Akanksha Jain held

The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court.

By-: Advocate Nitish Banka

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Maintainence/Interim Maintainence to wife calculation Judgements

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interim maintenance/maintenance to wife

Here are some of the Judgments which help in assess the interim maintenance/maintenance to wife and how courts devise the amount.

 

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Revision vs By Advs.Sri.C.P.Peethambaran 

There is nothing to show that the wife has any job or income of her own. Though the husband made such a contention that she has her own income, there is no evidence to prove such a case. The respondent is admittedly a carpenter. He also practically admitted that a carpenter would get 750/- per day. But his case is that he would not get job everyday in a month. Anyway, the trial court made a rough assessment of the probable income of the husband as 15,000/- per month. What is awarded is only 1/3rd of the probable income assessed. In the particular facts and circumstances, I find that some slight modification can be made in the amount awarded by the trial court. The revision petitioner will have his own personal expenses and he will have other liabilities in the family consisting his parents, brothers and sisters. The concern of the court must be that the amount awarded R.P (FC) No.311 of 2014 by the court must reach in the hands of the claimant. If a huge amount is awarded, the claimant may not get it promptly, and the person liable may think of other options, if he finds it difficult to make payment of the huge amount. So, I feel that 2500/- will do justice to the wife and 1500/- will do justice to the child in the present circumstances, of course, subject to periodic modification and enhancement under Section 127 of Cr.P.C as and when needs and necessities increase and circumstances change.

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Independence Day Free Legal Aid Program-8 Aug-16 Aug

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This independence day get a respite from your legal issues, from LexSpeak.

For promoting access to justice and facilitating legal awareness LexSpeak offers Free Legal aid on any issues concerning any matter pertaining to law.

Vande Matram!!

 

For Legal Queries Click Here

Call-9891549997

*This Free Legal Aid program is not an advertisement and is intended towards creating legal awareness among the people.

Interim Maintenance order is not interlocutory order! Can be revised

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After considering the whole matter, I am of the view that the argument has no force. Under the Code there is no provision for filing an application for granting interim maintenance during the pendency of main application under Section 125 of the Code after the Supreme Court judgment holding the right of the petitioner under Section 125 of the Code to get interim maintenance. Almost in all cases applications for interim relief are being made. This application for interim maintenance is by itself separate matter and . it has to be disposed of separately much earlier than the final order in the main case. By an order of interim maintenance, the rights of the parties are affected and decided finally in respect of that subject matter and by no stretch of imagination such an order can be called an interlocutory order.

Read judgement-  http://indiankanoon.org/doc/427266/

Queries-: Click Here

How to claim maintenance..

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Maintenance is a right which a husband, wife ,children and old parents can exercise under various provisions of law.Now which provisions are applicable in your case you can have a look below.

Maintenance U/S 24  HMA

  1. It is maintenance pedente lite, ie during the pend-ency of any proceedings under HMA(Hindu Marraige Act)
  2. Claimed by both husband or wife.
  3. To be filed with proceedings of divorce, Restitution of conjugal rights,Maintenance u/s 25, annulment cases

caution : If you are filing cases under 498a or under DV act application U/S 24 is not maintainable.

Scope: Temporary in nature only till pend ency of certain proceeding.

Maintenance under Section 25 HMA

1. Both husband and wife are entitled to permanent maintenance throughout such period not exceeding their life.

2. Longer time

3. However if wife remarries or husband have a sexual intercourse outside wedlock the maintenance can be denied.

4. Section 24 and 25 should be filed together for greater relief.

Scope-:only till the time party don’t marries.

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PRE MARITAL PREGNANCY AND ABORTION

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PRE MARITAL PREGNANCY AND ABORTION

The physical expression of sexuality is fundamental and universal. What differs is how cultures,
religions and societies construe and influence both the setting in which sexual intercourse between
men and women occurs and the types of relationships in which pregnancy is encouraged or
discouraged. Most societies and most religions approve of sexual intercourse and childbearing only
within marriage. Sexual intercourse at quite young ages—as part of or apart from marriage—is
common in many countries, developed and developing alike.
The premarital sexual behaviour of Asian, Middle Eastern and North African women is largely
undocumented. In these regions, a young woman having sexual intercourse before marriage would
challenge strongly held social and religious values, and national surveys typically do not ask
questions on this topic. However, this makes it all the more likely that a woman who breaks the
taboo against premarital sexual intercourse will feel compelled to seek an abortion if she becomes
pregnant.
P1-BO187_FALSPR_G_20131129195251

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How to Bargain the amount of Interim Maintenance/Maintenance.

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Interim maintenance and maintenance under s.24 and s. 25 of HMA or under s.125 CrPC or under DV act. These provisions bind a person who has an obligation to support and maintain his family. Initially when these cases are filed on say a husband they become adamant they deny to recognize their duty which can go adverse against the husband himself. Interim maintenance is the monthly amount set by the court till pending litigation. So the real benefit for the husband is to shorten the time of litigation so that he would end up paying less here are some of the ways to pay a minimum or no amount of interim maintenance / maintenance.

  • Capacity to Pay

The amount of maintenance is directly proportional to the income of the husband. Lesser the income lesser is the sanctioned amount. It is important that husband should take initiative to show the salary slip instead of the court asking for the same as the procedure by courts are slow so better to follow due diligence approach. This would also help in bringing down the amount and shortening the litigation as it would again show the honest approach of the husband.

  • Desertion by Wife

It is a rule that if wife has deserted the husband the husband is not liable to pay any form of maintenance. It is imported to show that you have done various efforts to call back the wife by mail, SMS, chats are all admissible proof. This again would lead to shortening of litigation and complete dismissal of maintenance case. But again the wife has 498a and cruelty but she need to prove it.

  • Mediation

Mediation is the best ground for negotiation. Try to negotiate the amount and mutually agree. It would again shorten the litigation and save lots of money on lawyers.

  • Working wife

Try to prove that wife is competent to earn, there is a rule that maintenance amount is for survival not for luxury and if the wife is working than no maintenance shall be awarded. But if wife is capable to earn then maintenance amount can be reduced.

Follow these tips remember the penny ur saving in maintenance cases can become heavy if litigation continues for long periods. In maintenance cases non-adamant, honest, diligent approach will win you.

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Legality of surrogacy in India

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           Motherhood as everyone says is the worlds best relationship between a child and her mother, call is globalisation or modernisation this precious relationship has turned into a business to some people and dreams come true to some other. Surrogacy is an arrangement or call it an agreement between a woman and the intended parents who carries the child of these parents.

  1. The word surrogate has its origin from the Latin word “surrogates” meaning a substitute that is a person appointed to act in place of another. The report of the committee of inquiry into human fertilization and embryology or the Warnock report (1982) termed surrogacy as the practise whereby one woman carries a child for another with the intention that the child should be handed over after birth to the intended parents.

  2. The worlds 2nd and India’s 1st IVF(In Vitro Fertilization) baby, Kanupriya alias Durga was born in Kolkata on Oct 3,1978 about two months after the world 1st IVF boy, Louise Joy Brown born in Great Britain on July 25,1978, since then the (Assisted Reproductive Technology)ART came into existence.

  3. There are various kinds of surrogacy like traditional surrogacy, gentical surrogacy, donar surrogacy and so on…

  4. Coming to the issues relating to surrogacy are many from legal to religious lets have a look into it:-

  • Legal issues-

  1. Are surrogacy agreements enforceable, void or prohibited, does it make a difference whether the surrogate mother is paid or simply reimbursed for the expenses?

  2. Is there an alternative to post birth adoption for the recognition of the intended parents as the legal parents, either before of after the birth?

  1. Should we be concerned about exploitation of motherhood and corrosion when women are paid to be pregnant and deliver babies?

  2. To what extent it is right for the society to permit women to make contracts about the use of their babies.

  3. What does motherhood mean and where is the nuptial relationship lost after giving the child to the intended parents.

  4. Does the surrogate child have the right to know about the identity of her nuptial mother?

  • Religious issues-

  1. Catholics-paragraph 2376 if the catechism of the catholic church states that “techniques that entail the disassociation of husband and wife by the intrusion of a person other than the couple (donation of sperm or ovum, surrogate uterus) are immoral’’

Most important thing that is to be considered here is that most of the foreign nationals are exploiting Indian poor women especially unmarried by showing them the lust for money and entering into surrogacy arrangements which is spoiling the lives and social relationships of these women the government has to look into this issue seriously and a determined law is to be framed in this aspect. On one side this sort of surrogacy births give a ray of hope to those people who cannot conceive but to the other side and to a very large extent this sort of arrangement is being used only for exploitation purpose which has to be kept in mind.

By-: Taruni Banda

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