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Family Laws in India-Divorce-Domestic Violence-Child Custody-Maintenance

Custody Of Child Law

Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.

In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights. Many of the religions practicing in India have their own personal laws and they have their different notion of custody.

Hindu Minority and Guardianship Act 1956 (HMGA)

Guardians and Wards Act 1890 (GWA)

Dowry Law-498-A-IPC

Dowry meaning :

Section 2.. "Dowry Prohibition Act, 1961" Definition of “dowry” Definition of “dowry”.—In this Act, “dowry”means any property or valuable security given or agreed to be given either directly or indirectly— (a) by one party to a marriage to the other party to the marriage; or (b) 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 1[or any time after the marriage] 2[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. Explanation I.— 3[***] Explanation II.—The expression “valuable security”has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).

Stridhan

Stridhan is, generally speaking, what a woman can claim as her own property within a marital household. It may include her jewelry (gifted either by her family), gifts presented to her during the wedding or later, and the dowry articles given by her family.

Gifts given by the parents of the bride are considered "stridhan", i.e. property of the woman, traditionally representing her share of her parent's wealth.

IPC Section 498A

498A. Husband or relative of husband of a woman subjecting her to cruelty.

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 purpose of this section, "cruelty" means-

Any willful conduct which is of such a nature as is likely to drive the woman to commit or suicide to cause grave injury or danger to life, limb or health whether mental or physical) the of woman; or

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 meet such demand.

This section is non-bailable,non-compoundable (i.e. it cannot be privately resolved between the parties concerned) and cognizable.

Prosecution for a non-compoundable offense can only be quashed by a High Court of India under its powers under section 482 of Criminal Procedure Code of India. Usually, cases under 498A are quashed by mutual agreement when the husband and wife reconcile with each other, or agree to divorce by mutual consent.

After registration of an FIR for a cognizable, non-bailable offense, the police in India can arrest any and all of the accused named in the complaint, but in Delhi before arresting now have to obtain a written permission from the DCP, after direction of Hon”ble High Court.

Domestic Violence Cases

Sec.3. Definition of domestic violence.—

For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it

harms or injures or endangers the health, safety, life, limb or well being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse,sexual abuse, verbal and emotional abuse and economic abuse; or

harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other or property valuable security; or

has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Divorce Matters

 :

Divorce case, Annulment of marriage, Child Custody, Mutual Divorce, maintenance for wife and Children’s, Advising on Foreign & NRI Divorce Matters, Domestic Violence Cases..etc..


 Pertaining to the divorce in India, there are various Laws which govern the principle of Divorce like Hindu Marriage Act-1955, Special Marriage Act-1956, Indian Divorce Act, Christian Marriage Act, etc. These laws basically deals with various aspects of divorce and most importantly laid down the grounds on which divorce can be sought by the spouses against each other. Under Indian Laws, divorce is generally divided in to two parts:

GROUND ON WHICH MARRIAGE CAN BE DISSOLVED  (Hindu Marriage Act,1955)

Adultery

Cruelty

Desertion and failure to maintain

Conversion to another religion

ncurable mental disorder

Incurable mental disorder which may result in abnormally aggressive or irresponsible

behavior

Virulent and incurable leprosy, or communicable venereal disease not contracted from           

the  party filing the application        

Renunciation of worldly life

Mutual Consent Divorce :-

In Mutual consent Divorce, a joint Divorce petition is filed in the District Court containing all terms and conditions regarding settlement between Husband and wife. Statement is recorded by the Court. Subsequently, Court calls parties again after six months to get their statement recorded. After recording of statement, Court grants Decree of Divorce and by virtue of same marriage gets dissolved. There are a bill pending against the period of six months waive off.



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Maintenance For Wife And Children- Sec.125 Crpc.

125. Order for maintenance of wives, children and parents.

1.           

If any person leaving sufficient means neglects or refuses to maintain-

A.           

his wife, unable to maintain herself, or

B.           

his legitimate or illegitimate minor child, whether married or not, unable to maintain

itself, or;

C.           

his legitimate or illegitimate child (not being a married daughter) who has attained

majority,where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

D.           

his father or mother, unable to maintain himself or herself,

A Magistrate of' the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate1[***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct::

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of' sufficient means.

[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person]

Litigation Law Firms in Delhi

The Firm in keeping with its high reputation and profound experience & expertise strives to provide much needed help to its clients in this area of its activity to secure them what they rightfully deserved.

The Firm has varied experience of representing its clients in all practice areas viz Banking & Finance, Commercial Laws, Personal Laws, Real Estate, Succession Laws, Administrative Laws, Fiscal Laws, Competition Laws, Consumer Laws, Patent & Trade Mark, Information & Technology, Land Acquisition, Infrastructure Laws and the laws pertaining to foreign exchange. A dedicated team of Lawyers in the Firm specialize in dealing with the cases pertaining to Economic Offences. The Firm represents its clients before Supreme Court of India, various High Courts all over the country and lower courts including judicial and quasi judicial authorities, established under various Enactments like Debt Recovery Tribunal, Appellate Tribunal, Forum established under Consumer Protection Laws, Board of Industrial & Financial Reconstruction including Appellate Authorities, Board established under Foreign Exchange Laws, Company Law Board etc

Medical Negligence Cases Law Firm in Delhi

It is one thing to say that when two views are possible and when Doctor performing the surgery adopts one view, the same cannot be a basis for fixing the medical negligence, on the ground that he ought to have followed the other. However, in a case where an act was done by a Doctor which he is otherwise not supposed to do and such an act was done in a negligent manner resulting in a substantial injury to the patient, then he cannot escape the liability. When a Doctor who performs a surgery is in possession of certain facts and the factum of the surgery has not been disputed, coupled with the fact that, the complications have arisen in pursuant to the surgery not correctly done then the onus is on him to prove that

negligence is not on his part. When the accident is such that in the ordinary course of action it is not likely to happen if the person incharge has not taken proper care then, the consequential liability will be on him.

Criminal Medical Negligence is governed by Section 304A of the Indian Penal Code. Section 304-A of the Indian Penal Code reads as under:- "304-A. Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable

homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." Essential ingredients of Section 304-A are as under:- (i) Death of a person

(ii) Death was caused by accused during any rash or negligence act. (iii) Act does not amount to culpable homicide. And to prove negligence under Criminal Law, the prosecution must prove:

(i) The existence of duty.

(ii)A breach of the duty causing death.

(iii) The breach of the duty must be characterized as gross negligence.

[See R. v. Prentice and R v. Adomako: [1993] 4 All ER 935] The question in the instant case would be whether the Respondents are guilty of criminal negligence. Criminal negligence is the failure to exercise duty with reasonable and proper care and employing precautions guarding against injury to the public generally or to any individual in particular. It is, however, well settled that so far as the negligence alleged to have been caused by medical practitioner is concerned, to constitute negligence, simple lack of care or an error of judgment is not sufficient. Negligence must be of a gross or a very high degree to amount to Criminal Negligence. Medical science is a complex science. Before an inference of medical negligence is drawn, the court must hold not only existence of negligence but also omission or commission on his part upon going into the depth of the working of the professional as also the nature of the job. The cause of death should be direct or proximate. A distinction must be borne in mind between civil action and the criminal action.

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India

Cyber Crimes Law Firms in Delhi

The word cyber and its relative dot.com are probably the most commonly used terminologies of the modern era. In the information age the rapid development of computers, telecommunications and other technologies has led to the evolution of new forms of trans-national crimes known as cyber crimes. Cyber crimes have virtually no boundaries and may affect every country in the world. They may be defined as any crime with the help of computer and telecommunication technology, with the purpose of influencing the functioning of computer or the computer systems. The extent of loss involved worldwide of cyber crimes is tremendous as it is estimated that about 500 million people who use the Internet can be affected by the emergence of cyber crimes. Cyber crimes are a very serious threat for the times to come and pose one of the most difficult challenges before the law enforcement machinery Most cyber crimes do not involve violence but rather greed, pride, or play on some character weakness of the victims. It is difficult to identify the culprit, as the Net can be a vicious web of deceit and can be accessed from any part of the globe. For these reasons, cyber crimes are considered.

Hacking

It is the most common type of Cyber crime being committed across the world. Hacking has been defined in section 66 of The Information Technology Act, 2000 as follows "whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means commits hacking".

Security Related Crimes

With the growth of the internet, network security has become a major concern. Private confidential information has become available to the public. Confidential information can reside in two states on the network. It can reside on the physical stored media, such as hard drive or memory or it can reside in the transit across the physical network wire in the form of packets. These two information states provide opportunities for attacks from users on the internal network, as well as users on the Internet.

Network Packet Sniffers

IP Spoofing

Password attacks

Distribution of sensitive internal information to external sources:

Man-in-the-middle-attacks

Fraud On The Internet

This is a form of white collar crime. Internet fraud is a common type of crime whose growth has been proportionate to the growth of internet itself. The internet provides companies and individuals with the opportunity of marketing their products on the net. It is easy for people with fraudulent intention to make their messages look real and credible. There are innumerable scams and frauds most of them relating to investment schemes and have been described in detail below as follows:

Online investment newsletters

Bulletin boards

E-mail scams

Credit card fraud

Making available digital signature for fraudulent purpose

Alteration And Destruction Of Digital Information

The corruption and destruction of digital information is the single largest menace facing the world of computers. This is introduced by a human agent with the help of various programmes which have been described in detail below as follows:

Virus Just as a virus can infect the human immunity system there exist programs, which, can destroy or hamper computer systems. A computer virus is a programme designed to replicate and spread, generally with the victim being oblivious to its existence. Computer viruses spread by attaching themselves to programmes like word processor or spreadsheets or they attach themselves to the boot sector of a disk. When an infected file is activated or when the computer is started from an infected disk, the virus itself is also executed.

Pornography On The Net

The growth of technology has flip side to it causing multiple problems in everyday life. Internet has provided a medium for the facilitation of crimes like pornography. Cyber porn as it is popularly called is widespread. Almost 50% of the web sites exhibit pornographic material on the Internet today. Pornographic materials can be reproduced more quickly and cheaply on new media like hard disks, floppy discs and CD-Roms. The new technology is not merely an extension of the existing forms like text, photographs and images. Apart from still pictures and images, full motion video clips and complete movies are also available. Another great disadvantage with a media like this is its easy availability and accessibility to children who can now log on to pornographic web-sites from their own houses in relative anonymity and the social and legal deterrents associated with physically purchasing an adult magazine from the stand are no longer present. Furthermore, there are more serious offences which have universal disapproval like child pornography and far easier for offenders to hide and propagate through the medium of the internet.

Criminal defense lawyers law firms in delhi

In India there are two laws related to crime and it’s known as criminal law.

CODE OF CRIMINAL PROCEDURE

CODE, 1973 INDIAN PENAL CODE, 1860

Now a days there are a new crime has come and in force and people know as white collar crimes the same offence is related to economic offences.

We are dealing in the area of the criminal law as under:

BAIL IN NON-BAILABLE OFFENCES

ANTICIPATORY BAIL

CRIMINAL DEFENSE TRIAL

OFFENCE RELATED TO FORGED-VISA AND PASSPORT CASES

OFFENCE RELATED TO CHEATING

OFFENCE RELATING TO SEXUAL HARASSMENT AND RAPE

OFFENCE RELATED TO DOWRY DEMAND AND DOMESTIC VIOLENCE

OFFENCE RELATED TO DAKAITI, THEFT, CRIMINAL BREACH OF TRUST

OFFENCE RELATED TO CRIMINAL DEFAMATION

OFFENCE RELATED TO UNLAWFUL ASSEMBLE

MATTER RELATED TO EXTRADITION TRETIES

OFFENCE RELATED TO MURDER

CRIMINAL COMPLAINT UNDER SECTION 156 CR.P.C

COMPLAINT UNDER SECTION 200/202 CR.P.C

QUASHING OF FIR

CRIMINAL WRIT PETITION IN SUPREME COURT AND HIGH COURT

CRIMINAL APPEAL IN SUPREME COURT AND HIGH COURT

CRIMINAL REVISION PETITION IN SUPREME COURT AND HIGH COURT

SUSPENSION OF SENTENCE

CORPORATE LEGAL SERVICES IN INDIA

Established in the year 2002, we, Leges Juris Associates Law Firm  is a professionally managed Corporate Law Firm offering Legal Services. We have Legal Consultancy Services. Our services includes Litigation Services, Supreme Court Practice, Arbitration and Dispute Resolution. Leges Juris Associates Law Firm is based in New Delhi but having a strong domestic and International network of Lawyers and Law Firms. The firms associated are in all important cities of India including Mumbai (Bombay), Chennai (Madras), Kolkata (Calcutta), Punjab & Haryana, Lucknow,Allahabad..etc..