VED LEGAL provides doorstep telephonic and online legal solution to following matrimonial issues/cases:-
1. For Divorce Matters
2. For Mutual Consent Divorce matters
3. For Restitution of conjugal rights matters
4. For Domestic Violence matters
5. For Custody of Child
6. For Permanent Alimony and Maintenance matters
VED LEGAL provides doorstep telephonic and online legal solution to following matrimonial issues/cases:-
1. For Divorce matters
2. For Mutual Consent Divorce matters
3. For Restitution of conjugal rights matters
4. For Domestic Violence matters
5. For Custody of Child
6. For Permanent Alimony and Maintenance matters
Permanent Alimony and Maintenance under Section 25 of Hindu Marriage Act, 1955
Section 25 provides for the grant of permanent alimony and maintenance to any of the party to a marriage at the time of passing any decree under the Act or at any time subsequent thereto. The court shall take into account the status of opposite party in fixing the amount for maintenance. The court has been empowered to rescind or modify the order at any subsequent stage if the circumstances so warrant; and if petitioner becomes inchoate or remarries at any subsequent stage the court may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.
Sub-section (1) of Section 25 requires that an application must be made by the wife or the husband who is party to the main proceeding, if she or he wants the incidental relief of permanent alimony and such an application may be made in the main proceedings either before or at the time of passing the decree granting substantive relief of divorce or at any time subsequent to the passing of such decree.
“The relief of permanent alimony being an incidental relief it should not be a matter of any consequence whether the application for it is made prior to passing of the decree or subsequent to it. As a matter of fact, the relief of permanent alimony being a relief incidental to the granting of the substantive relief, it would be more consonant with reason that an application for such incidental relief should be maintainable after the passing of the decree granting the substantive relief.
After the amendment of the Hindu Marriage Act in 1976, the scope of the Act has widened and now it is mandatory for the court to grant full opportunity to the parties to substantiate their rival contentions by leading proper evidence. The court should take into account the other circumstances which may influence the grant or refusal of permanent alimony besides considering the income and conduct of the parties.
The right to permanent alimony accrues only when a decree has been passed in favour of the petition under Sections 9 to 13. In case no such decree has been passed in favour of the petitioner, the right to claim any maintenance or alimony is ruled out. Thus where a petition of the husband is dismissed under any of the sections i.e., Sections 9 to 14 the application for permanent maintenance filed by the wife under Section 25 of the Act will be rejected.
Still the wife could claim maintenance under Section 18(1) of the Hindu Adoption and Maintenance Act, 1956 or under Section 125 of the Criminal Procedure Code, 1973 The court cannot entertain any claim for maintenance in any proceeding under Section 25 of the Hindu Marriage Act, 1955, which are maintainable under Section 18 of the Hindu Adoption and Maintenance Act, 1956.
The provisions contained under Section 25 of the Act, are not controlled by Section 18 of the Hindu Adoption and Maintenance Act, 1956. It is not necessary for a wife who has obtained a decree of judicial separation upon finding that the husband has deserted her to prove desertion within the meaning of Section 18(2) (a) of the Hindu Adoption and Maintenance Act.
Section 25 confers a special right on the indigent spouse while the Hindu Adoption and Maintenance Act confers an absolute right.
Section 25 cannot be construed in such a manner as to hold that notwithstanding the nullity of marriage, the wife retains her status for purpose of applying for alimony and maintenance. The proper construction of Section 25 would be that where a marriage is admitted to be a nullity, the section will have application.
But where the question of nullity is in issue and its contentions the court has to proceed on the assumption until contrary is proved that the applicant is the wife. It is in that sense that Section 25 should be appreciated.
Under the section, permanent alimony can be granted even to an earring spouse and the mere fact that the wife did not comply with the decree for restitution of conjugal rights and that was the cause for passing of a decree against her, cannot by itself disentitle her to claim permanent alimony under this section.
The fact that the wife was a guilty spouse can only be taken as a relevant factor in assessing the conduct of the parties and in determining the amount of permanent alimony.
In an important case, Gulab v. Kamal, the husband got the decree of divorce against the wife on the ground of misconduct and adultery. The wife moved an application for maintenance under Section 25 of the Act. The court held that a decree passed against the applicant on the ground of unchastity is no bar to his or her claiming maintenance either at the time of passing such decree or any time subsequent thereto.
The court has ample discretion to grant or refuse maintenance and the extent to which to grant the same, depending on the facts and circumstances of each case. But an adulterous conduct on the part of wife subsequent to the order of maintenance in her favour after the decree of divorce is passed would certainly negate her claim to get maintenance allowance in future.
In Patel Dharmshree Premji v. Bai Shankar Kanji,’ the Gujarat High Court affirmed the above proposition and held that even a guilty party to a marriage could obtain permanent alimony. It has further been said that a mother claiming maintenance for herself cannot include the amount of maintenance for her children therein and she must bring a separate suit for the purpose. On the question of reducing the amount of maintenance under Section 25 of the Act in proceedings for judicial separation the fact that the wife had been leading an adulterous life would be relevant and significant.
Under this section application for permanent alimony can be moved by either party to the marriage. The provision for permanent alimony even after the grant of divorce or decree of nullity is the specialty of the Act. There may be circumstances in which divorce between the spouses could be decreed by the court yet it is felt necessary that some amount of maintenance be fixed.
For example, where after the performance of marriage the wife becomes victim of some veneral disease or leprosy and on that ground divorce is decreed in favour of husband, if no permanent arrangement is made for her unkeep and amount of maintenance is not specified for the purpose, her life would become too miserable. Keeping such eventualities in mind the provision for permanent maintenance has been made which is very much desirable and reasonable.
In Verna Kallia v. Jatinder Nath Kallia the husband a doctor had settled in foreign country leaving his wife and a marriageable daughter in India. The payment of maintenance was denied by the husband upon the ground that the husband obtained divorce in foreign country to which the wife had acquiesced by accepting the maintenance under foreign judgment.
The court held that the foreign judgment of divorce was not binding upon her. Upon the facts of the case relying the Supreme Court’s view given in Surinder Kaur Sandlin v. Harbax Singh Sandlin. Further court allowed the decree of divorce in favour of wife upon the ground of cruelty, desertion and adultery since her husband had married in foreign country and was having three children there. Considering the status of parties, their future necessities, and claim for maintenance by wife for herself and daughter was allowed at the rate of Rs. 10,000 per month. Husband was also directed to deposit Rs. 10 lakhs for marriage of his daughter.
In Suresh v. Phoolwanti, there was decree of judicial separation in favour of husband on the ground of wife’s renunciation, as she had become a Brahma Kumari after taking a vow of celebacy as per requirement of the seat. The court also passed an order of permanent alimony in favour of wife at the rate of Rs. 450/- per month. It was said by the court that even though the family life was disrupted on account of the act of the wife yet she was entitled to get permanent maintenance.
Simply because the wife had deserted her husband without any lawful excuse ultimately resulting in a decree of divorce against her, she could not be deprived of her right to claim permanent maintenance on that account after the said decree. But where a decree of judicial separation is passed in favour of the husband followed by a decree of divorce after two years on the ground that during that period the husband had made no effort to compromise and there was in fact no compromise between them, they said omission on his part would be relevant fact to be considered while passing an order of permanent alimony against him.
In Shanta Ram v. Dagoo Devi, the court held that Section 25 of the Act, confers upon a woman whose marriage is void or is declared to be void, a right of maintenance against her husband. The right of maintenance can be enforced by her not only in proceeding under Section 25 but also in any other proceeding where the validity of her marriage is determined.
It can be claimed by her not only during the lifetime of her husband but also after his death against the property of her husband. Of course, his right of maintenance is available only during her life time and ceases if she remarries.
Recently in Babu Shahab v. Leela Bai, Bombay High Court has given a very important decision on Section 25 of Hindu Marriage Act, 1955. After considering the fact, the Court upholding right of maintenance to “illegitimate wife” or faithful “mistress” by liberal construction of word “wife” as contained in Section 25 of the Hindu Marriage Act cannot be said to be a good law, arc required to be overruled to that extent. The Court observed that illegitimate wife too can claim maintenance.
In Abbayolla M. Subba Reddy v. Padmamma, The court held that if the marriage admittedly is nullity of the Hindu Marriage Act, section 25 of the Act is not applicable, the relief of maintenance cannot be granted.
The court is empowered under the section to take note of changed circumstances and vary the amount of maintenance. In such matters neither the principle of res-judicata nor of estoppel would have any application to frustrate proceedings on the application for increasing the amount of maintenance.
It is well recognised in Hindu law that the right of maintenance is a substantive and continuing right and the quantum of maintenance is variable from time to time. Hence the extension of the principle of res-judicata or of estoppel in matters relating to variation of the amount of maintenance is beyond all contemplations and outside the purview of judicial considerations.
Under the section the right to permanent maintenance comes to a close in the following circumstances:
(1) Where the wife or husband has remarried;
(2) Where the wife ceases to remain chaste and in the case of husband where be develops illicit relations with another woman
Issue of child custody and access:-
If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians.
The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.
Over the years, there is a shift from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The non-negotiable principle on which custody is decided is the ‘best interest and welfare of the child’. Who will best serve the child’s emotional, educational, social and medical needs is the only criteria.
The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access .
The belief that once a child attains a particular age, the father shall have uncontested right is misplaced and wrong.
This principle of best interest of the child ought to also apply in case of mutual divorce. Who will the child stay with, what will be the terms of access, how will the child’s living and educational costs be met?
Parties have larger negotiating space where more innovative terms can be evolved; like joint custody, a concept that does not exist in statutes but has evolved while negotiating divorce settlements. In this, both parents will have legal custody but one will have the physical custody and be the primary caretaker.
Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child’s convenience, could include the non-custodial parent’s right to school events, etc.
One ought to remember that as a parent every ‘right’ you exercise ought to also have a corresponding ‘duty’ towards the child. As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child’s educational life or a monthly amount with incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living.
Property in the name of the child with either parent as the guardian can also be given as a lump sum with the rent from the property used for monthly maintenance expenses. Investments which could yield a larger return at a later point such as insurance and educational policies could also be factored in. Provisions for unforeseen situations such as medical emergency should also be considered.
A misgiving that the money set aside for the child could be misused by the custodial parent or that the non-custodial parent could abuse the terms of access alone should not prevent an amicable settlement.
The court is parens patriae, the ultimate guardian of the child and her/his property and so minor’s property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be ‘the best interest of the child’.
ANTICIPATORY BAIL
Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code. Law Commission of India in its 41st report recommended incorporating this provision in procedure code. [1]This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.[2]
On filing anticipatory bail, the opposing party is notified about the bail application and the opposition can then contest the bail application in court (public prosecutor can also be used to do this).
Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.
Contents
• Eligibility
• Conditions
• Qualification
• Cancellation
Eligibility
When any person apprehends that there is a move to get him arrested on false or trumped up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. Anticipatory Bail can be granted by Sessions Court, High Court and Supreme Court.
Conditions
The High Court or the court of session may include such conditions in the light of the facts of the particular case, as it may think fit, including:
• a condition that the person shall make himself available for interrogation by the police officer as and when required;
• a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
• a condition that the person shall not leave India without the previous permission of the court.
If such person is thereafter arrested, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail and the magistrate taking cognizance of such offence decides that warrant should be issued against that person, he shall issue a bailable warrant in conformity with the direction of the court granting anticipatory bail.[2] Supreme Court while dealing the case of Sidhram Mhetre, held certain conditions imposed by High Court to be not required & contrary to provisions of anticipatory bail.
Qualification
The applicant must show by disclosing special facts and events that he has reason to believe, that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences.[2]
Cancellation
An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.
Alimony is a monetary compensation granted to the spouse who is unable to support himself/herself by the other spouse during or after the divorce proceeding.
There are two types of alimony generally and same applies according to the Indian Laws as well:
When it’s given during the time of the court proceedings, it is a maintenance amount. The second is when it’s given after the legal separation. After separation, alimony can be taken either as a one-time lump sum amount or a fixed payment, which could be monthly, quarterly and the like, depending on the requirement of the spouse. Alimony can be taken by either party depending on the case.
The court decides the amount of alimony/maintenance which is to be paid by the respective spouse after examining various parameters.
The income of the spouses, their standard of living and financial status are the factors considered. Spouse’s income, investments and net worth, as well as the financial needs of the individuals are taken into account.
Though there isn’t a fixed formula to quantify the amount, generally it is in the range of one fifth to one third of the gross earnings of the spouse who has to pay alimony.
The number of years the couple has been married, the number of children and the kind of emotional investment made are also considered. The husband can request stopping of payment or reducing the amount, if the wife manages to get another source of income.
While choosing the mode of payment, the lump sum is a preferred option. Lump sum gives certainty. A regular fixed pay out can stop after a while due to reasons like the supporting spouse losing his or her source of income or death. The lump sum amount is not taxable as you get it as capital receipt. However, if investments made from this amount earn returns, the return is taxable. The monthly payment route is taxable to the spouse who gets it.
Once the court passes the order, the supporting spouse has to pay alimony which was decided. If payments are not made on time, there are consequences where the court can take further action against the spouse.
How alimony is decided?
Wife is earning: Court looks into husband’s financial status. If his income is very high, wife will get some alimony.
Wife is not earning: Wife will get alimony that allows her to maintain a standard of living that is similar to that of her husband.
Wife remarries: Wife will not get anything. Husband will have to continue to pay for children, if any.
Husband is disabled and unable to earn: Wife can be asked to pay alimony.
The terms and conditions of payment of alimony in India vary from one personal law to another. None of the Indian personal laws are spared from criticism due to existence of laws in framing definite rules for granting alimony.
