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.



-----------------------------------------------------------------------------------------------------------------------------------------------------------------

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]