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Child Custody lawyers in Pune

CUSTODY OF CHILD –

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
In any proceeding under this Act, the court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible and may, after the decree, upon application by petition for the purposes make from time-to-time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending and the court may also from time-to-time revoke, suspend or vary any such orders and provisions previously made:
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)
In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.

Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.
Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith
Power to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.

Section 42. Power to make such orders after decree.-
The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.

Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.

Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:
Section 6 of the Natural Guardians of a Hindu Minor:-

The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interests in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;
(c) in case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).

Explanation.- In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.
Under all the Acts, the Court has been empowered to pass interim order when the proceedings are pending or even after a decree has been passed in respect of custody, maintenance and education of the minor children. Not only this, the court has the power to revoke, suspend or vary any such order from time-to-time these orders have to be passed by a Matrimonial Court at anyone of the following stages of marital proceedings:-
Interim orders: These orders are passed when the proceedings are pending between the parties till the matter is finally disposed of.
Permanent Orders: These orders are passed when the matter is finally disposed of and a decree is passed.
Subsequent to the passing of the decree: In this case, the Court may be called upon to pass an order in two situations:
(i) Where in a matrimonial proceedings, no application has been made by either of the party for custody and after passing of the decree, a fresh petition may be made for custody, maintenance and education of the minor children; or
(ii) When the court has already passed a permanent order of custody, an application has been made to modify, revoke or suspend or vary any order.
The orders in respect of custody, maintenance and education of the minor children are very vital in the matrimonial proceedings as it affects not only the children, but the parents also. Therefore, the Court has to be very cautious in dealing with the such applications. Such orders are not final and the Court is
empowered to alter or modify any order at any stage of the proceedings or subsequent at any time. After passing of the decree the child has attained majority.

Thus, the Court exercises jurisdiction in respect of custody, maintenance and education of the minor children till they attain the age of majority. This power of the Court is very delicate and the Legislature reposed confidence in the Matrimonial Courts which has to be exercised in a judicious way and in the best

interest of the minor children.
The expression “Minor Children” includes children either born of the marriage or born to the party prior to marriage, born of the marriage which has been declared null and void or dissolved by a decree of divorce. It also includes
the children adopted by both the parties. However, it does not include the children which have been adopted by a wife prior of her marriage, section is not attracted to the children belonging to one of the parties prior to the marriage, It means that the children belonging to both the parties to the marriage, whether after the marriage or before the marriage or by way of adoption.

If the marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.
In a proceedings before Matrimonial Courts, the Courts have to decide the question of custody of children. The Courts retain this power not only during the pendency of proceedings, but also after passing of a decree. It can revoke, suspend or vary, any such order made earlier. While giving the custody of a child, the Courts have to keep in mind the welfare of a child which is a paramount consideration. Though other factors are also important, but welfare of the minor is of utmost consideration while disposing of an application for custody of minor children. The wish of a child is also equally important. But the wish of the child becomes relevant, if the child is old enough to make an intelligent preference. in the case of a female child generally the Courts have given custody to the mother as on attaining the age of puberty, such child requires the care and attention of the mother. Thus, over and above of all factors, it is the welfare of the child which is the decisive factor while deciding the question of giving custody of a child.

CHILD CUSTODY
In all matrimonial proceedings, the most important and complex issue is that of Child Custody. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.
Though all matrimonial laws provides a provision regarding custody of child, but the real power lies under Guardian and Wards Act-1890. Guardian and wards card are empowered to determine the issue of child custody.
Generally speaking, Guardian and Wards Court have power to grant:
Permanent Custody
Interim Custody
Visitation Right
Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favor of one spouse as against the other is WELFARE OF THE CHILD.
Important factors, amongst other, which are considered by the Court in awarding custody are:
a. Education of the father
b. Education of the Mother
c. Family background of the Husband which includes financial and educational background.
d. Family background of the Wife
e. Financial Background of the Husband and Wife
f. Wishes of the minor
g. Better chances of overall development of personality of child.
h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.
Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court. The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.
In nut shell, we can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.

A good child custody lawyer in India is a one who is not only aware about the laws and rules and plethora of cases but also has the ability to bear the emotional and psychological need of either of the father or mother. A good Child custody lawyer has to handle the legal and emotional issues with utmost precision. Custody lawyer have to act not only as a professional but also a human being with the heart of parent to fight out the child custody case in the Court of law.

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’.

By |October 26th, 2017|Child Custody lawyers in Pune|Comments Off on Child Custody lawyers in Pune
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BEST LAWYERS FOR ANTICIPATORY BAILS PUNE

Anticipatory Bails

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
• See also
• References

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.[4]
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.

ANTICIPATORY BAILS
VED LEGAL deals with various criminal matters in and across Pune. It is expertise in LAW OF BAILS. For better understanding the details about LAW OF BAILS has given mentioned herein below:-
The bail under CRPC is divided according to the types of offence alleged against the accused.
The basic rules for grant or denial of bail may simply be summarized as:

1. There are only two kinds of offences under the criminal law, bailable offence and non-bailable offence.

2. In case of bailable offences, as per section 436 CrPC (criminal procedure code 1973) bail has to be granted to the accused as it is a matter of right for the accused to demand and be granted bail.

3. In case of non-bailable offences, as per section 437 CrPC and Section 439 CrPC, the grant or refusal of the bail is a matter of discretion of the court which means bail can be granted by the court. Only condition is that it cannot be demanded as a right by the accused.

4. The section 437 CRPC (Code of Criminal Procedure 1973) lays out certain basic criteria for the court while exercising its judicial discretion for grant or refusal of the bail in case of non-bailable offences, some of the criteria are the nature of offence, past criminal record, the probability of guilt, etc. and carves out exceptions for minors, women etc.

5. Section 438 CRPC also lays down the concept of Anticipatory Bail where the accused may seek bail if they apprehend arrest, so as to prevent even the otherwise brief incarceration. It must be noted that the grant or refusal of anticipatory bail is also a matter of discretion for the court.

The Hon’ble Supreme Court of India has mentioned several other criteria as factors to be taken into consideration when granting bail in non-bailable offences, these factors includes but not limited to probability of recommission of the offence, possibility of frightening witnesses, probability of evidences being tampered, the seniority of the accused and his consequent circles of influence in affecting the investigation if released.

Landmark cases on the factors to be taken into consideration while hearing bail application are State through CBI v. Amarmani Tripathi AIR 2005 SC 3490, Gurcharan Singh v. State of Delhi, AIR 1978 SC 179. There is catena of judgement which specifically states that “bail is a rule and jail is the exception”. That means apart from the above noted factors ‘bail not jail’ should be the thumb rule, implying that as far as possible the Courts must try and grant bail and only in exceptional circumstances can bail be refused.

By |October 26th, 2017|BEST LAWYERS FOR ANTICIPATORY BAILS PUNE|Comments Off on BEST LAWYERS FOR ANTICIPATORY BAILS PUNE
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LAWYERS FOR ANTICIPATORY BAILS PUNE

Anticipatory Bails

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
• See also
• References

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.[4]
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.

ANTICIPATORY BAILS
VED LEGAL deals with various criminal matters in and across Pune. It is expertise in LAW OF BAILS. For better understanding the details about LAW OF BAILS has given mentioned herein below:-
The bail under CRPC is divided according to the types of offence alleged against the accused.
The basic rules for grant or denial of bail may simply be summarized as:

1. There are only two kinds of offences under the criminal law, bailable offence and non-bailable offence.

2. In case of bailable offences, as per section 436 CrPC (criminal procedure code 1973) bail has to be granted to the accused as it is a matter of right for the accused to demand and be granted bail.

3. In case of non-bailable offences, as per section 437 CrPC and Section 439 CrPC, the grant or refusal of the bail is a matter of discretion of the court which means bail can be granted by the court. Only condition is that it cannot be demanded as a right by the accused.

4. The section 437 CRPC (Code of Criminal Procedure 1973) lays out certain basic criteria for the court while exercising its judicial discretion for grant or refusal of the bail in case of non-bailable offences, some of the criteria are the nature of offence, past criminal record, the probability of guilt, etc. and carves out exceptions for minors, women etc.

5. Section 438 CRPC also lays down the concept of Anticipatory Bail where the accused may seek bail if they apprehend arrest, so as to prevent even the otherwise brief incarceration. It must be noted that the grant or refusal of anticipatory bail is also a matter of discretion for the court.

The Hon’ble Supreme Court of India has mentioned several other criteria as factors to be taken into consideration when granting bail in non-bailable offences, these factors includes but not limited to probability of recommission of the offence, possibility of frightening witnesses, probability of evidences being tampered, the seniority of the accused and his consequent circles of influence in affecting the investigation if released.

Landmark cases on the factors to be taken into consideration while hearing bail application are State through CBI v. Amarmani Tripathi AIR 2005 SC 3490, Gurcharan Singh v. State of Delhi, AIR 1978 SC 179. There is catena of judgement which specifically states that “bail is a rule and jail is the exception”. That means apart from the above noted factors ‘bail not jail’ should be the thumb rule, implying that as far as possible the Courts must try and grant bail and only in exceptional circumstances can bail be refused.

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ADVOCATES FOR ANTICIPATORY BAILS PUNE

Anticipatory Bails

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
• See also
• References

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.[4]
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.

ANTICIPATORY BAILS
VED LEGAL deals with various criminal matters in and across Pune. It is expertise in LAW OF BAILS. For better understanding the details about LAW OF BAILS has given mentioned herein below:-
The bail under CRPC is divided according to the types of offence alleged against the accused.
The basic rules for grant or denial of bail may simply be summarized as:

1. There are only two kinds of offences under the criminal law, bailable offence and non-bailable offence.

2. In case of bailable offences, as per section 436 CrPC (criminal procedure code 1973) bail has to be granted to the accused as it is a matter of right for the accused to demand and be granted bail.

3. In case of non-bailable offences, as per section 437 CrPC and Section 439 CrPC, the grant or refusal of the bail is a matter of discretion of the court which means bail can be granted by the court. Only condition is that it cannot be demanded as a right by the accused.

4. The section 437 CRPC (Code of Criminal Procedure 1973) lays out certain basic criteria for the court while exercising its judicial discretion for grant or refusal of the bail in case of non-bailable offences, some of the criteria are the nature of offence, past criminal record, the probability of guilt, etc. and carves out exceptions for minors, women etc.

5. Section 438 CRPC also lays down the concept of Anticipatory Bail where the accused may seek bail if they apprehend arrest, so as to prevent even the otherwise brief incarceration. It must be noted that the grant or refusal of anticipatory bail is also a matter of discretion for the court.

The Hon’ble Supreme Court of India has mentioned several other criteria as factors to be taken into consideration when granting bail in non-bailable offences, these factors includes but not limited to probability of recommission of the offence, possibility of frightening witnesses, probability of evidences being tampered, the seniority of the accused and his consequent circles of influence in affecting the investigation if released.

Landmark cases on the factors to be taken into consideration while hearing bail application are State through CBI v. Amarmani Tripathi AIR 2005 SC 3490, Gurcharan Singh v. State of Delhi, AIR 1978 SC 179. There is catena of judgement which specifically states that “bail is a rule and jail is the exception”. That means apart from the above noted factors ‘bail not jail’ should be the thumb rule, implying that as far as possible the Courts must try and grant bail and only in exceptional circumstances can bail be refused.

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Advocates For Alimony in Pune

Types of Alimony / Spousal Support

Before an ex-spouse can even be eligible for alimony there has to be a valid marriage. If the marriage ended in annulment or was considered void, generally, there is no legal basis for awarding alimony unless state statutes provide otherwise.
Alimony awards can come in a variety of forms:
• Temporary Alimony
• Rehabilitative Alimony
• Permanent Alimony

Additionally, more than one category of award can be awarded in the same divorce action.

TEMPORARY ALIMONY
Temporary alimony is often awarded during the period the divorce proceeding is pending. This type of award becomes necessary due to the length of time. It could take before the final decree is issued and a permanent alimony award is made.

REHABILITATIVE ALIMONY
Generally, rehabilitative alimony is used to support the spouse during a period of retraining or re-education for re-entry into the workforce, thereby enabling the spouse to become self-supporting in not too distant future. Since it provides a temporary fix to help the party regain marketable skills, it can be classified as another form of temporary alimony.
The courts are more compelled to award this type of alimony where the spouse seeking it, has some potential for establishing a viable career.

PERMANENT ALIMONY
Permanent alimony becomes effective upon the final dissolution of the marriage. Additionally, it can come in various forms:
• Periodic payments (often monthly)
• Lump sum payments
• Annuity payments
• Trust payments
• In-kind payments (e.g., making direct payment for services)
Despite the seemingly permanent nature of this type of award, it usually does not last forever (i.e., until the recipient’s death). In most jurisdictions there is no prescribed period for alimony payments. For instance, the California statute which deals with the duration of alimony states:
Despite the nomenclature, courts consider various factors before making the decision as to which party, if any, should be entitled to alimony.

FACTORS IN ALIMONY/SPOUSAL SUPPORT
Alimony awards are generally based upon the needs and abilities of each party, using factors such as:
• Age of the parties;
• Health and physical condition of the parties;
• The earning capacity of the parties(e.g., taking into account the supported spouse’s marketable skills vis-à-vis the current job market for those skills);
• Present income of the parties;
• The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party;
• The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living;
• The duration of the marriage;
• The needs of each party based on the standard of living established during the marriage; and
• The jurisdiction of the marriage (in some jurisdictions).
When divorce statutes were fault-based, there were two additional factors courts considered: (1) degree of fault and (2) maintenance of status.

ENFORCEMENT OF ALIMONY AWARDS
An alimony award is essentially a court order, thereby making payment mandatory—based on the dictates of the order. If the payor fails to fulfill those obligations, he or she will be in contempt of court. As such, the court can take the necessary steps to compel the payor to comply with the order. Specifically, courts can choose either to pursue a civil or criminal proceeding against the scofflaw.
A civil proceeding has an underlying purpose of getting the delinquent payor to make the required payments rather than punishing the delinquent payor. Conversely, a criminal proceeding is used to punish the offender, which usually results in the imposition of some jail time. Remedies for nonpayment can include:
• Imprisonment for a prescribed period of time (despite the threat of imprisonment, many jurisdictions are unwilling to throw their debtors in jail)
• Judgment against the non-complying party (also enforceable in other states under the doctrine of full faith and credit)
• Seizure of property such as tax refunds
• Liens on real property
• Wage garnishments
If the reason behind nonpayment is due to an inability to pay, that argument can be advanced in a petition for modification of the award.

THE OBLIGATIONS IN ALIMONY AFTER DIVORCE

Once the order for alimony is directed, the one who pays support must continue to do so until the receiving partner weds again. If there are defaulting payments, such lapses or not delivering on the right date, one faces repercussions. This may include ordering the employer of the husband to deduct the spousal alimony from his monthly salary and make a direct recompense to his wife. One may also face contempt of court.

HOW ALIMONY IS DECIDED

Wife is earning
When the wife earns her own money, the law investigates the financial condition of the husband. If the husband is very prosperous then he is ordered to pay alimony to his ex-wife.

When the wife is non-earning
When the wife is non-earning, she is entitled to be paid alimony, which enables her to live on par with her husband’s financial status. The idea is to equalize the financial position of both spouses.

If the wife remarries
The husband is exonerated from paying his ex-wife alimony if she remarries. However, he will be liable to continue payment for the children.

Husband is jobless because of disability
In circumstances where the husband is sick, disabled or unable to earn a living, the wife pays alimony to her husband.

Duration of the marriage
Usually if the marriage is 10 years of age, the spousal support has to be life-long.

Age of spouse
The court takes into account the age of the spouse to be paid alimony. If he/she is young and has excellent career prospects, there is a possibility of a future job and income to support them. In this instance, the period of maintenance paid is shortened
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

By |October 26th, 2017|Advocates for Alimony in Pune|Comments Off on Advocates For Alimony in Pune
Read More

Lawyers For Alimony in Pune

Types of Alimony / Spousal Support

Before an ex-spouse can even be eligible for alimony there has to be a valid marriage. If the marriage ended in annulment or was considered void, generally, there is no legal basis for awarding alimony unless state statutes provide otherwise.
Alimony awards can come in a variety of forms:
• Temporary Alimony
• Rehabilitative Alimony
• Permanent Alimony

Additionally, more than one category of award can be awarded in the same divorce action.

TEMPORARY ALIMONY
Temporary alimony is often awarded during the period the divorce proceeding is pending. This type of award becomes necessary due to the length of time. It could take before the final decree is issued and a permanent alimony award is made.

REHABILITATIVE ALIMONY
Generally, rehabilitative alimony is used to support the spouse during a period of retraining or re-education for re-entry into the workforce, thereby enabling the spouse to become self-supporting in not too distant future. Since it provides a temporary fix to help the party regain marketable skills, it can be classified as another form of temporary alimony.
The courts are more compelled to award this type of alimony where the spouse seeking it, has some potential for establishing a viable career.

PERMANENT ALIMONY
Permanent alimony becomes effective upon the final dissolution of the marriage. Additionally, it can come in various forms:
• Periodic payments (often monthly)
• Lump sum payments
• Annuity payments
• Trust payments
• In-kind payments (e.g., making direct payment for services)
Despite the seemingly permanent nature of this type of award, it usually does not last forever (i.e., until the recipient’s death). In most jurisdictions there is no prescribed period for alimony payments. For instance, the California statute which deals with the duration of alimony states:
Despite the nomenclature, courts consider various factors before making the decision as to which party, if any, should be entitled to alimony.

FACTORS IN ALIMONY/SPOUSAL SUPPORT
Alimony awards are generally based upon the needs and abilities of each party, using factors such as:
• Age of the parties;
• Health and physical condition of the parties;
• The earning capacity of the parties(e.g., taking into account the supported spouse’s marketable skills vis-à-vis the current job market for those skills);
• Present income of the parties;
• The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party;
• The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living;
• The duration of the marriage;
• The needs of each party based on the standard of living established during the marriage; and
• The jurisdiction of the marriage (in some jurisdictions).
When divorce statutes were fault-based, there were two additional factors courts considered: (1) degree of fault and (2) maintenance of status.

ENFORCEMENT OF ALIMONY AWARDS
An alimony award is essentially a court order, thereby making payment mandatory—based on the dictates of the order. If the payor fails to fulfill those obligations, he or she will be in contempt of court. As such, the court can take the necessary steps to compel the payor to comply with the order. Specifically, courts can choose either to pursue a civil or criminal proceeding against the scofflaw.
A civil proceeding has an underlying purpose of getting the delinquent payor to make the required payments rather than punishing the delinquent payor. Conversely, a criminal proceeding is used to punish the offender, which usually results in the imposition of some jail time. Remedies for nonpayment can include:
• Imprisonment for a prescribed period of time (despite the threat of imprisonment, many jurisdictions are unwilling to throw their debtors in jail)
• Judgment against the non-complying party (also enforceable in other states under the doctrine of full faith and credit)
• Seizure of property such as tax refunds
• Liens on real property
• Wage garnishments
If the reason behind nonpayment is due to an inability to pay, that argument can be advanced in a petition for modification of the award.

THE OBLIGATIONS IN ALIMONY AFTER DIVORCE

Once the order for alimony is directed, the one who pays support must continue to do so until the receiving partner weds again. If there are defaulting payments, such lapses or not delivering on the right date, one faces repercussions. This may include ordering the employer of the husband to deduct the spousal alimony from his monthly salary and make a direct recompense to his wife. One may also face contempt of court.

HOW ALIMONY IS DECIDED

Wife is earning
When the wife earns her own money, the law investigates the financial condition of the husband. If the husband is very prosperous then he is ordered to pay alimony to his ex-wife.

When the wife is non-earning
When the wife is non-earning, she is entitled to be paid alimony, which enables her to live on par with her husband’s financial status. The idea is to equalize the financial position of both spouses.

If the wife remarries
The husband is exonerated from paying his ex-wife alimony if she remarries. However, he will be liable to continue payment for the children.

Husband is jobless because of disability
In circumstances where the husband is sick, disabled or unable to earn a living, the wife pays alimony to her husband.

Duration of the marriage
Usually if the marriage is 10 years of age, the spousal support has to be life-long.

Age of spouse
The court takes into account the age of the spouse to be paid alimony. If he/she is young and has excellent career prospects, there is a possibility of a future job and income to support them. In this instance, the period of maintenance paid is shortened
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

By |October 26th, 2017|Lawyers For Alimony in Pune|Comments Off on Lawyers For Alimony in Pune
Read More

Lawyers For Alimony in Pune

Types of Alimony / Spousal Support

Before an ex-spouse can even be eligible for alimony there has to be a valid marriage. If the marriage ended in annulment or was considered void, generally, there is no legal basis for awarding alimony unless state statutes provide otherwise.
Alimony awards can come in a variety of forms:
• Temporary Alimony
• Rehabilitative Alimony
• Permanent Alimony

Additionally, more than one category of award can be awarded in the same divorce action.

TEMPORARY ALIMONY
Temporary alimony is often awarded during the period the divorce proceeding is pending. This type of award becomes necessary due to the length of time. It could take before the final decree is issued and a permanent alimony award is made.

REHABILITATIVE ALIMONY
Generally, rehabilitative alimony is used to support the spouse during a period of retraining or re-education for re-entry into the workforce, thereby enabling the spouse to become self-supporting in not too distant future. Since it provides a temporary fix to help the party regain marketable skills, it can be classified as another form of temporary alimony.
The courts are more compelled to award this type of alimony where the spouse seeking it, has some potential for establishing a viable career.

PERMANENT ALIMONY
Permanent alimony becomes effective upon the final dissolution of the marriage. Additionally, it can come in various forms:
• Periodic payments (often monthly)
• Lump sum payments
• Annuity payments
• Trust payments
• In-kind payments (e.g., making direct payment for services)
Despite the seemingly permanent nature of this type of award, it usually does not last forever (i.e., until the recipient’s death). In most jurisdictions there is no prescribed period for alimony payments. For instance, the California statute which deals with the duration of alimony states:
Despite the nomenclature, courts consider various factors before making the decision as to which party, if any, should be entitled to alimony.

FACTORS IN ALIMONY/SPOUSAL SUPPORT
Alimony awards are generally based upon the needs and abilities of each party, using factors such as:
• Age of the parties;
• Health and physical condition of the parties;
• The earning capacity of the parties(e.g., taking into account the supported spouse’s marketable skills vis-à-vis the current job market for those skills);
• Present income of the parties;
• The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party;
• The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living;
• The duration of the marriage;
• The needs of each party based on the standard of living established during the marriage; and
• The jurisdiction of the marriage (in some jurisdictions).
When divorce statutes were fault-based, there were two additional factors courts considered: (1) degree of fault and (2) maintenance of status.

ENFORCEMENT OF ALIMONY AWARDS
An alimony award is essentially a court order, thereby making payment mandatory—based on the dictates of the order. If the payor fails to fulfill those obligations, he or she will be in contempt of court. As such, the court can take the necessary steps to compel the payor to comply with the order. Specifically, courts can choose either to pursue a civil or criminal proceeding against the scofflaw.
A civil proceeding has an underlying purpose of getting the delinquent payor to make the required payments rather than punishing the delinquent payor. Conversely, a criminal proceeding is used to punish the offender, which usually results in the imposition of some jail time. Remedies for nonpayment can include:
• Imprisonment for a prescribed period of time (despite the threat of imprisonment, many jurisdictions are unwilling to throw their debtors in jail)
• Judgment against the non-complying party (also enforceable in other states under the doctrine of full faith and credit)
• Seizure of property such as tax refunds
• Liens on real property
• Wage garnishments
If the reason behind nonpayment is due to an inability to pay, that argument can be advanced in a petition for modification of the award.

THE OBLIGATIONS IN ALIMONY AFTER DIVORCE

Once the order for alimony is directed, the one who pays support must continue to do so until the receiving partner weds again. If there are defaulting payments, such lapses or not delivering on the right date, one faces repercussions. This may include ordering the employer of the husband to deduct the spousal alimony from his monthly salary and make a direct recompense to his wife. One may also face contempt of court.

HOW ALIMONY IS DECIDED

Wife is earning
When the wife earns her own money, the law investigates the financial condition of the husband. If the husband is very prosperous then he is ordered to pay alimony to his ex-wife.

When the wife is non-earning
When the wife is non-earning, she is entitled to be paid alimony, which enables her to live on par with her husband’s financial status. The idea is to equalize the financial position of both spouses.

If the wife remarries
The husband is exonerated from paying his ex-wife alimony if she remarries. However, he will be liable to continue payment for the children.

Husband is jobless because of disability
In circumstances where the husband is sick, disabled or unable to earn a living, the wife pays alimony to her husband.

Duration of the marriage
Usually if the marriage is 10 years of age, the spousal support has to be life-long.

Age of spouse
The court takes into account the age of the spouse to be paid alimony. If he/she is young and has excellent career prospects, there is a possibility of a future job and income to support them. In this instance, the period of maintenance paid is shortened
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

By |October 26th, 2017|Lawyers For Alimony in Pune|Comments Off on Lawyers For Alimony in Pune
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Alimony and Maintenance under Indian Law

Types of Alimony / Spousal Support

Before an ex-spouse can even be eligible for alimony there has to be a valid marriage. If the marriage ended in annulment or was considered void, generally, there is no legal basis for awarding alimony unless state statutes provide otherwise.
Alimony awards can come in a variety of forms:
• Temporary Alimony
• Rehabilitative Alimony
• Permanent Alimony

Additionally, more than one category of award can be awarded in the same divorce action.

TEMPORARY ALIMONY
Temporary alimony is often awarded during the period the divorce proceeding is pending. This type of award becomes necessary due to the length of time. It could take before the final decree is issued and a permanent alimony award is made.

REHABILITATIVE ALIMONY
Generally, rehabilitative alimony is used to support the spouse during a period of retraining or re-education for re-entry into the workforce, thereby enabling the spouse to become self-supporting in not too distant future. Since it provides a temporary fix to help the party regain marketable skills, it can be classified as another form of temporary alimony.
The courts are more compelled to award this type of alimony where the spouse seeking it, has some potential for establishing a viable career.

PERMANENT ALIMONY
Permanent alimony becomes effective upon the final dissolution of the marriage. Additionally, it can come in various forms:
• Periodic payments (often monthly)
• Lump sum payments
• Annuity payments
• Trust payments
• In-kind payments (e.g., making direct payment for services)
Despite the seemingly permanent nature of this type of award, it usually does not last forever (i.e., until the recipient’s death). In most jurisdictions there is no prescribed period for alimony payments. For instance, the California statute which deals with the duration of alimony states:
Despite the nomenclature, courts consider various factors before making the decision as to which party, if any, should be entitled to alimony.

FACTORS IN ALIMONY/SPOUSAL SUPPORT
Alimony awards are generally based upon the needs and abilities of each party, using factors such as:
• Age of the parties;
• Health and physical condition of the parties;
• The earning capacity of the parties(e.g., taking into account the supported spouse’s marketable skills vis-à-vis the current job market for those skills);
• Present income of the parties;
• The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party;
• The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living;
• The duration of the marriage;
• The needs of each party based on the standard of living established during the marriage; and
• The jurisdiction of the marriage (in some jurisdictions).
When divorce statutes were fault-based, there were two additional factors courts considered: (1) degree of fault and (2) maintenance of status.

ENFORCEMENT OF ALIMONY AWARDS
An alimony award is essentially a court order, thereby making payment mandatory—based on the dictates of the order. If the payor fails to fulfill those obligations, he or she will be in contempt of court. As such, the court can take the necessary steps to compel the payor to comply with the order. Specifically, courts can choose either to pursue a civil or criminal proceeding against the scofflaw.
A civil proceeding has an underlying purpose of getting the delinquent payor to make the required payments rather than punishing the delinquent payor. Conversely, a criminal proceeding is used to punish the offender, which usually results in the imposition of some jail time. Remedies for nonpayment can include:
• Imprisonment for a prescribed period of time (despite the threat of imprisonment, many jurisdictions are unwilling to throw their debtors in jail)
• Judgment against the non-complying party (also enforceable in other states under the doctrine of full faith and credit)
• Seizure of property such as tax refunds
• Liens on real property
• Wage garnishments
If the reason behind nonpayment is due to an inability to pay, that argument can be advanced in a petition for modification of the award.

THE OBLIGATIONS IN ALIMONY AFTER DIVORCE

Once the order for alimony is directed, the one who pays support must continue to do so until the receiving partner weds again. If there are defaulting payments, such lapses or not delivering on the right date, one faces repercussions. This may include ordering the employer of the husband to deduct the spousal alimony from his monthly salary and make a direct recompense to his wife. One may also face contempt of court.

HOW ALIMONY IS DECIDED

Wife is earning
When the wife earns her own money, the law investigates the financial condition of the husband. If the husband is very prosperous then he is ordered to pay alimony to his ex-wife.

When the wife is non-earning
When the wife is non-earning, she is entitled to be paid alimony, which enables her to live on par with her husband’s financial status. The idea is to equalize the financial position of both spouses.

If the wife remarries
The husband is exonerated from paying his ex-wife alimony if she remarries. However, he will be liable to continue payment for the children.

Husband is jobless because of disability
In circumstances where the husband is sick, disabled or unable to earn a living, the wife pays alimony to her husband.

Duration of the marriage
Usually if the marriage is 10 years of age, the spousal support has to be life-long.

Age of spouse
The court takes into account the age of the spouse to be paid alimony. If he/she is young and has excellent career prospects, there is a possibility of a future job and income to support them. In this instance, the period of maintenance paid is shortened
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

By |October 26th, 2017|Alimony and Maintenance under Indian Law|Comments Off on Alimony and Maintenance under Indian Law
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Best Lawyers For Company Registration Process

Company Registration Process

There are 5 types of companies that can be registered in India
• Sole Proprietorship Firm
• Partnership Firm
• One Person Company
• Limited Liability Partnership
• Private Limited Company

1. Sole Proprietorship Firm
A sole proprietorship business is where a single individual runs the business. There is no separation between the legal identities of the business and the businessman. In other words, business debts are the businessman’s own debts. His liability is unlimited and he is personally responsible to bear all losses of the business.
 Following are some essential features of a sole-proprietorship:
• Easy to form
• One person ownership
• Unlimited liability
• No separation between business and business owner
• Freedom of decision making
• Secrecy.
• Tax benefits.
• Business exists as long as the owner does.

 Registration of Sole Proprietorship Firm
There is no formal process for registering a Sole-proprietorship in India. Therefore, the existence of a sole proprietorship business can be established only through opening a bank account in the name of the proprietorship firm or obtaining licenses required for conducting the business under various other acts such as:
• Shops and Establishments, for the premises.
• FSSAI License Food License, if you are thinking to start food truck, restaurants, food joints, food item or consumable item packaging, food item or cosumable item delivery etc.
• GST Registration It is a mandatory for all Business or Professional entities with turnover exceeding INR 20 lakhs are required to obtain Goods & Services Tax (GST) registration compliance
• Trade License, issued by the municipal corporation of a city, allows a business owner to carry on an activity or manufacture or exchange of any commodity.
• Import Export Code (IEC), if you want to import or export.

However, please note that you don’t need to register under all these acts. The kind of registration will depend upon a) type of your business b) expected annual turnover and c) location.

2. Partnership Firm
A partnership firm is a business structure in which two or more individuals manage and operate a business in accordance with the terms and objectives set out in a Partnership Deed. All the partners have unlimited liability, which means they are personally liable for the debts of the business.
 Following are some essential features of a Partnership:
• Aim is to share profits and not losses.
• Losses, if any, will be borne by partners in their profit sharing ratio.
• Only persons who are competent to contract# can form a partnership.
• A minor cannot be a partner in a partnership. But, he is allowed to share the profits from a partnership business.
• No partner is allowed to transfer his share in partnership to any other person without the consent of all the other partners.
• There is a presumption of utmost good faith between partners.
• Every partner contributes to the business in some form or the other. It may be in the form of time, money, skills and/or goodwill.

 Registration of Partnership Firm:
A partnership firm can be registered whether at the time of its formation or even subsequently. You need to file an application with the Registrar of Firms of the area in which your business is located.
 Ensure that the following documents and prescribed fees are enclosed with the registration application :
• Application for Registration in the prescribed Form – I
• Duly filled Specimen of Affidavit
• Certified copy of the Partnership deed
• Proof of ownership of the place of business or the rental/lease agreement.

 Application for partnership registration should include the following information:
• Name of your firm
• Name of the place where business is carried on
• Names of any other place where business is carried on
• Date of partners joining the firm
• Full name and permanent address of partners.
• Duration of the firm
• Every partner needs to verify and sign the application

Once the Registrar of Firms is satisfied that the application procedure has been duly complied with, he shall record an entry of the statement in the Register of Firms and issue a Certificate of Registration.

3. One Person Company
The concept of One Person Company (OPC) was introduced by the Companies Act of 2013. It is a cross or hybrid between the sole proprietorship and company forms of business and combines the best features of both. As the name suggests, it allows a single individual to form a company. It combines the freedom of a sole proprietorship business with the limited liability and various other benefits that come with operating as a company.
 Following are some essential features of a One Person Company:
• Any natural person can form a company. i.e. an individual
• The person must be an Indian citizen or a person who is resident in India
• Such person will be the shareholder and member of the company. No other shareholder is required.
• Such shareholder must nominate a person to act as his nominee to act as the shareholder/member in the event of his/her death incapacity.
• Consent must be obtained from a person before designating him/her as the nominee.
• An OPC must have a minimum of one director.
• The person forming the company may also act as the director.
• Such company can only be incorporated as a private company.
• It may be a company limited by shares, by guarantee, or an unlimited company.
• Minimum capital requirements are the same as applicable to a private company i.e. INR One (1) Lakh.

4. Limited Liability Partnership
An LLP is a unique mode of doing business which offers a combination of the flexibility of a partnership and limited liability of a company. It is governed by the Limited Liability Partnership Act, 2008. An LLP is the most preferred route taken by startups to incorporate their business.
 Following are some essential features of a LLP:
• It is a corporate body.
• It is a legal person separate from its partners.
• All the partners have limited liability.
• It provides perpetual succession to the business.
• Requires at least two partners and at least two individuals as designated partners.
• At least one designated partner must be a resident of India.
• Winding up may be voluntary or may be initiated by a tribunal/High Court.
• The Indian Partnership Act does not apply to an LLP.
• The Central Government is allowed to apply provisions of Companies Act to an LLP.

5. Private Limited Company
Generically defined, a private company would be an association of persons who share a common purpose and pool their resources in order to achieve that purpose.
As per The Companies Act, 2013, a minimum of two persons can form a private company.

 Following are some essential features of a Private Limited Company:
Huge capital
• Raise capital from angel investors, venture funds etc.
• Maximum number of members is 200 for private company.
• Limited Liability of all the members.
• Separate Legal Entity
• The memorandum must state the word ‘private limited’ with the name of the company.
• Minimum number of directors is 2 for a private company.
• Right to transfer shares is restricted in the case of a private company.
• The minimum capital requirement of INR 1 lakh for private companies
• Use of common seal is optional.

 Private Limited Company – The most successful business type.
In a private company, the business owners hold all shares of the company privately. Shareholders may operate the business themselves, or hire directors to manage the company on their behalf. Registering a private limited company results in protection of personal assets, access to more resources, financial assistance and greater credibility.
 Limited Liability Partnership (LLP) – A corporate form of Partnership
It exhibits elements of both partnership and corporation. In LLP, one partner is not responsible or liable for another partner’s misconduct or negligence unlike a traditional partnership in which each partner has joint and several liability.
All these three forms of business have the feature if Limited Liability and Separate Legal Entity, ie, the members or partners have no personal liability. Yet, they are different from each other in various aspects.
 One Person Company (OPC) – A corporate form of Proprietorship.
One Person Company (OPC) has been recently introduced in India to promote business enterprises that are owned and managed by a single Entrepreneur. OPC allows for a single individual to own and manage the business. One Person Company is therefore a viable option for those looking to start an unregistered Proprietorship.
 Documents required for Private Limited Company Registration
For Directors/Shareholders
• One Photograph.
• Copy of PAN Card.
• Copy of Address proof – Aadhaar Card/Driving License/Passport/Voter ID.
• Copy of Bank Statement/Mobile Phone/Landline Telephone Bill.
• Copy of Aadhaar Card.

For Company Address
• Proof of Registered Address – Sale Deed/Rental Agreement
• Copy of Utility bill – Electricity/Landline telephone/Gas Bill – not older than two months.
• No Objection Certificate for use of premises, if required

It usually takes 15-20 days to Register a Private Limited Company through SPICe INC-32 (A single application for Reservation of Name, Incorporation of Company and Allotment of DIN), subject to ROC processing time.
These are four major steps:
• Acquiring Digital Signature Certificate(DSC)
• Acquiring Director Identification Number(DIN)
• Filing an eForm or New user registration
• Incorporate the company

It’s necessary to get registered yourself to run your business without any legal problem. India is a land of opportunity, no matter in which field your business is operating the chances of getting success is very high, so it just needs a start. starting an entrepreneurship in India would fetch you great success. fallow this post sincerely till you incorporate your final claim for your company. We assure one will end up in getting their business registered after following this procedure.
Private company may have two directors, but a public company must have at least three directors.

 Lets start the registration procedure: 4 Steps
Step 1: Acquire Director Identification Number (DIN)
This is the first process in registration that each director of the company should obtain their identification number. As per the amendment act 2006, acquiring a DIN is compulsory for every director i.e. as such every existing and intending directors have to obtain their DIN. To get DIN one need to file a eForm DIN-1. The DIN-1 form is available on Official site of the ministry of corporate affairs the link is DIN-1 Form.
• Register yourself on MCA Website first and have a login id. After filling DIN-1 Form, one should upload the filled form by clicking to eForm upload button on MCA website and should pay applicable fees.
• After getting generated DIN one should intimate their company about DIN. The director can intimate their company about DIN by using DIN-2 Form.
• Then company should intimate the Registrar of Corporates(ROC) about all director’s DIN through DIN-3 Form.
• If there is any change in DIN or need for any updation like change of address, personal details etc, then director should intimate this change by submitting the eForm DIN-4 Form.

Step 2: Acquire Digital Signature Certificate(DSC):
In order to ensure the security or authenticity of documents filed electronically the information act 200o demands a valid digital signature on the documents submitted electronically. This is the only and safest way that one can submit their documents electronically. The digital signature certificate should be acquired by only those agencies which are appointed by the controller of certification agencies (CCA). One should not use DSC given by any other agency which is not approved and it’s illegal to use others DSC as yours or the false one.
If you already have a digital signature then you can use the same, no need to apply for another. But do check for your digital signature validity, agencies issue DSC’s with one or two year validity after expiry you have to renew it.
One can acquire his/her Digital Signature certificates from these government listed agencies like TCS, IDBRT, MTNL, SAFESCRYPT, NIC, NCODE Solutions etc. to check out their price details of these Govt approved agencies, Go to this link.
Step 3: Create a account on MCA Portal – New user registration
This is about having a registered user account on MCA Portal for filing a eForm, for online fee payment, for different transactions as registered and business user. Creating an account is totally free of cost. To register yourself on the MCA portal, click on the register link.
Step 4: Apply for the company to be registered.
This is the final major step in a registration of your company which includes incorporating company name, Registering the office address or notice of situation of office and notice for appointment of company directors, manager and secretary. And also regarding the take and pay for their qualification shares.
• Form-1:Form-1A: Application form for availability or change of a company name. Once you apply for new company name, the MCA will suggest four different form of your company name; you have to choose one among them. To do the same you have you have to fill Form-1A and submit.Form-1: This is for application or declaration for incorporation of a company, in this form you have to fill the same name which you have chosen during application of form-1A.
• Form-18:This form is for notice of the situation of a new company office or change of situation of previously registered office.For a new company you have to fill the form with genuine office address and submit.
• Form-32:For a new company, this form is for notice for appointment of new Directors, Managers and Secretary. For an existing company, this form is for a change of directors, Manger, Secretary or company head.

After submitting these forms, once the application has been approved by MCA, you will receive a confirmation email regarding the application for incorporation of a new company, and the status of the form will get changed to Approved.

 Detailed procedure for approval of the proposed company name:
For obtaining name for your new company, An application in Form-1A needs to be filed with the Registrar of Companies (ROC) of the state in which the Registered Office of the proposed Company is to be situated to ascertain the availability of a name along with an official service fee of Rs.500/-.
You have to provide four alternative names for the proposed company. Your company name shall not resemble the name of any other company already registered or violate the provisions according to Act, 1950.
In this form you have to fill name and addresses of directors (minimum 2 for a private company and 7 for a public company). You have to mention main objects of the company and authorized capital.
In about 10 days, the ROC will inform you about approval or objections. If there are any objections then ROC will suggest you with some available names and let you choose among them. If your company name is approved then you will receive a formal letter regarding the confirmation of the same. Keep the same which will be required during registration process of the proposed company.
If you find any difficulty or encounter any problem while obtaining the company name then do contact us, We will help you to sort out your problem.
 Check these documents before submission of a company:
1. DIN of all those directors of a proposed company.
2. DSC – Digital Signature Certificate
3. Original copy the of formal letter issued by ROC regarding availability of Company name.
4. Form-1 for incorporation of a company.
5. Form-18 for situation or address of the proposed company.
6. Form-32 for particulars of proposed directors, managers and secretary.

 Formalities to be followed while incorporation of a company:
1. Obtain a TAN card
2. Obtain a Permanent account number (PAN) from income tax dept. India
3. If required: Documents obeying shop and establishment acts.
4. If required: For foreign trade, Registration documents of import export code from Director General of foreign trade.
5. If required: Registration documents of Software technologies Parks of India (STPI).
6. If required: RBI approval for foreign companies investing in India and FIPB approval.
7. Both Indian and foreign directors need to have valid Digital Signature Certificates from authorized agencies.

 Company Registration Process:
1.DSC (Digital Signature Certificate).
All Propose directors of the private limited Company should have a digital signature and digital signature will use to file the registration, ROC compliance forms, and Tax returns.
2.Director Identification No (DIN).
When a Digital signature is approved, and you will get an approval email from the Registrar of companies that you are now eligible to be a director of a company. It takes one working days to approve DIN.
3. Company Name Approval.
After a Trademark search, we will proceed to file a Name approval application to ROC on your behalf.
4.Final Incorporation & CIN.
After Name approval from the Registrar of Companies, we will file final incorporation e-form with all supporting documents like registered address proof, Declaration from directors. Registrar of companies takes 3 working days to complete the approval process of a company.
 Documents Required
From All Directors And Shareholder.
• PAN Card or Passport or Election ID Card.
• Latest Bank Statement/Telephone or Mobile Bill.
• Voter’s ID/Passport/Driver’s License.
• Passport-sized photograph of all directors and shareholder.
• Scan copy of Signature (signature should same as on PAN Card).

 Registration Procedure
A private limited company is the most common form of business entity in India. It is easy to maintain and raise funds, offers limited liability to its members, offer flexibility, easy bank loan accessibility. Read Advantages of Private Limited Company. Following are the steps involved in the registration of private limited company.

Basic requirement
There must be at least 2 members in the company.
The company shall be made for legal business and must not harm the society. The company object should not be illegal.
In case, if the registrar issue the certificate of incorporation to such business entity , then certificate will be void and registration will be itself cancelled by the Central Government and appropriate proceeding will take place against the entity and the Registrar.
Read in detail Pre-Requisites for Registration of Private Limited Company
Step 1: Obtaining Director Identification Number (DIN) & Digital Signature
The First step is
1. Obtaining Director Identification Number (DIN) for the proposed Directors in the Company
2. Obtaining Digital Signature for one of the Directors of Company.

After this, application for name of Private Limited Company must be applied.
Step 2: Applying for the name
The promoters should propose one or more suitable name for the name of company as it offers the flexibility and choice to registrar to select the name in case some names are identical or similar to registered business entities or trademark.
1. The name should not be similar or identical to any registered company or trademark.
2. The name should not be one prohibited under the ‘Emblems and names Act, 1950’.
3. The name of company must have suffix “Private limited Company”.

After submission of name, registrar will review and approve one of the name .It usually takes 3 to 5 working days to approve the name for company .
Read tips for Choosing the right name for your company registration for easy approval of name by ROC.
Step 3: Filing for Incorporation of Private Limited Company
After the name approval, promoters should submit the application, prescribed fees and below said following documents to the registrar.
1. Articles of Association, if any.
2. Memorandum of Association.
3. Declaration from Directors.
4. Affidavits of the Directors.

A declaration stating that the requirements of the Act and the rules framed there under have been compiled with. This declaration is required to be signed by an advocate of the or Supreme Court or an attorney or a pleader having the right to appear before or a High Court or a Chartered Accountant in whole time practice in India who is engaged in the formation of a company, or by a person named in the Articles as a Director, Manager or Secretary of the Company.
Besides the aforementioned documents, the company must provide relevant information regarding of its registered office within 15 days of registration or during filing of incorporation documents.
Step 4: Subscribing to the Private Limited Company
As per the Companies Act 2013, a subscriber must sign their names and must be subscribed to the shares of the company incorporated. It means each subscriber must have at least one share of the company. Each subscriber should sign the memorandum in presence of at least one witness and must clearly state the following:
1. Address
2. Personal Description
3. Occupation
4. No of shares subscribed
5. Nature of shares etc.

Likewise both (Article and Memorandum of association) must be duly signed and stamped.
Step 5: Certificate of Incorporation
After filing the above-mentioned documents and payment of necessary fees, the certificate for Company incorporation would be issued by the Registrar of Companies. Upon Incorporation, the company becomes a legal person separate from its members.
The process to register a private limited is complex and time-consuming. Our team atLegalRaasta can help startups and Entrepreneurs Register Private Limited Company in 14-15 days @ 13,999/- only (inclusive of government fee) saving 40% compared to typical CA/CS.
Registering new business in India, some official procedures a company has to follow in order to register them in Indian official records, MCA (ministry of Corporate Affairs) has to made registration process online few years back.
The registration includes some must follow rules and some registration like Digital Signature Certificate (DSC), Director Identity Number (DIN), Filing an eForm or New user registration and Incorporate the company.

1. A private limited company should have a minimum capital of Rs 1 lac. The registration fee and stamp duty depends on the capital of the company and the state in which the company is registered. The company name should reflect the business objects of the company. It should be such that it does not resemble the name of any existing companies. If the proposed names resemble any existing business entity, the Registrar of companies may reject the name application.

2. Partnership firms are not a separate legal entity; hence the partners and the partnership firm are the same. However, for income tax purposes, partnership firms are treated as a separate entity and hence need to obtain PAN from the income tax dept and file income tax returns.

3. Only a natural person can form a One Person Company. A private company or an LLP can NOT start an OPC. The member should also be a resident on India.

For more details on registering Pvt ltd,Partnership,NGO,Trust,Sole Proprietorship firm contact
HG Corporates, hgcorporates.com
To Register a Startup company in India you’ll need to take help of professional & licensed company registration service providers like us.
 Procedures for Private Limited Company Registration:
Minimum Requirements for Private Limited Company Registration
• Minimum 2 Directors (The directors and shareholders can be same person)
• Minimum 2 Shareholders.
• No Minimum Capital Required.

 Documents Required For Private Limited Company Registration:
1. Colour PP Photograph.
2. PAN Card – Self Attested.
3. Identity Proof – Any One Self Attested.
(Driving License / Passport / Aadhar Card / Voter ID Card).
4. Address Proof – Any One Self Attested.
(Latest Bank Statement / Electricity Bill / Telephone Bill / Mobile bill).

Submit the documents to Licensed & Professional Company Registration service providers like HG Corporate Advisors.
Legal procedure for registering a company as Private Limited in India:
STEP 1 :Getting a Digital Signature & DIN:
In lay man’s language Digital Signature is a kind of password which authenticate the user.DIN refers to Director Identification Number; Anyone who is proposed to be a Director of the company needs to have a DIN.
STEP 2 : Name Availability Check & Application for Name Reservation/ Approval:
We will apply for Name Approval with the ROC. A maximum of 6 Names can be provided for Name approval.
STEP 3 : Drafting of Memorandum of Association (MOA) & Article of Association (AOA). , Filing & Uploading of Incorporation Forms:
• We consult with you and draft your Memorandum of Association & Article of Association for your kind perusal so that your Company is incorporated with the best drafted Memorandum & Articles.
• Form 1 has been replaced with Form INC-7: For Application of Incorporation of Company.
• Documents Required: Memorandum of Association (To be prepared by us.
• Article of Association (To be prepared by us).
• Affidavit from Subscriber (Non Acceptance of Public Deposit – Format to be provided by us).
• Id Proof of Subscriber (/Passport/Voter Id/Aadhar/Driving License – Any ONE).
• Residential Proof of Subscriber (Latest Bank Statement/Latest Mobile Bill/Latest Telephone Bill / Latest Electricity Bill).
• INC 9 & INC 10 as attachment in Notarized Stamp-paper (Format shall be provided by us).

STEP 4 : Company Address Form 22 for situation of Office Address
STEP 5 : DIR-12 for information regarding the Directors:
Declaration by Director (Format to be provided by us). Consent Letter by Director (Format to be provided by us)
STEP 6 : Getting Incorporation Certificate:
After Uploading the Forms, generally within 3-7 working days, a Company Incorporation Certificate is received.
Private Limited Company Registration Package Includes:
• 2-Digital Signature Certificate (DSC).
• 2-Director Identification Number (DIN).
• Company Name Approval by Ministry.
• Memorandum of Association (MoA) &
• Articles of Association (AoA).
• Registration Certificate.
• Permanent Account Number (PAN).
• Tax Account Number (TAN).

A guide on how to register Startup or new business in India with documents needed, fees breakdown and time to complete company registration.
A startup is an energy booster for the Indian economy. Whether your startup is a sole proprietorship or a partnership business, it’s better to give your business a legal existence. The reason being, a registered company, can be closed down only by legal authorities in case of any unforeseen issues. Here we look at the steps to register a start-up or a new business in India.
The Ministry of Corporate Affairs has made it convenient for the new startups by introducing the online registration. In May 2015, Ministry of Corporate Affairs introduced a five-in-one form to make the process of registration easier. The new form known as Integrated Incorporation Form INC-29 will require you to fill only one form instead of the tedious process of filling out eight forms. An advantage of the new form is that it reduces the interaction with the authorities at the various levels.
Now you can register your new business from the comfort of your home. There are four steps that you need to do follow.
 Apply for Director Identification Number(DIN)
The first and foremost process is to the registration of the company directors. You should create a login id in the Legal Raasta website.
A nominal amount of Rs 500 for DIN will be charged and normally it takes a day to get this number.
 Acquire Digital Signature Certificate (DSC)
This is important to ensure the authenticity of the documents that you file electronically. Also, understand that the digital signature certificate should be authenticated by the agencies appointed by the controller of certificate agencies.
You would have to pay a nominal amount Rs 1299/-. It will get at least four days to get the certificate.

 Approval of the company name and certificate of Incorporation
The company name will be approved by Registrar of Company (ROC). Once the name is approved by ROC apply for the Certificate of Incorporation. This is done by filling out Form 1, Form 18 and Form 32.
You would have to pay Rs 1000/- for the approval of the name and the Certificate of Incorporation, the amount can be anywhere between Rs 1000 to 4000.
The name approval will take at least two days while the certificate of incorporation will take a week.
The following documents that have to be attached to Form 1 while applying for the certificate of Incorporation.
• Signed copy of the Memorandum of Association (MOA).
• Signed copies of Articles of Association (AOA).

The power of Attorney from the various subscribers on judicial stamp paper worth Rs 100 and finally, the identification of the subscribers.
 Apply for Permanent Account Number and Tax Account Number for the registered company
The PAN card can be obtained from Income Tax Department, India by paying a nominal amount of INR 94. You can apply for the TAN card by visiting the website TIN. You will be charged INR 62.
The total time span to obtain these is seven days.
The other formalities that you can go about during this period include getting a rubber stamp of the company, registering for VAT and professional tax, employees provident fund and health insurance and so on.
 Procedures for Private Limited Company Registration:
STEP 1 :Getting a Digital Signature & DIN:
In lay man’s language Digital Signature is a kind of password which authenticate the user.DIN refers to Director Identification Number; Anyone who is proposed to be a Director of the company needs to have a DIN.
STEP 2 : Name Availability Check & Application for Name Reservation/ Approval:
HG will apply for Name Approval with the ROC. A maximum of 6 Names can be provided for Name approval.
STEP 3 : Drafting of Memorandum of Association (MOA) & Article of Association (AOA). , Filing & Uploading of Incorporation Forms:
• HG Corporate Advisors consults with you and draft your Memorandum of Association & Article of Association for your kind perusal so that your Company is incorporated with the best drafted Memorandum & Articles.
• Form 1 has been replaced with Form INC-7: For Application of Incorporation of Company.
• Documents Required: Memorandum of Association (To be prepared by HG)
• Article of Association (To be prepared by HG)
• Affidavit from Subscriber (Non Acceptance of Public Deposit – Format to be provided by HG)
• Id Proof of Subscriber (/Passport/Voter Id/Aadhar/Driving License – Any ONE)
• Residential Proof of Subscriber (Latest Bank Statement/Latest Mobile Bill/Latest Telephone Bill / Latest Electricity Bill)
• INC 9 & INC 10 as attachment in Notarized Stamp-paper (Format shall be provided by HG)

STEP 4 : Company Address Form 22 for situation of Office Address
STEP 5 : DIR-12 for information regarding the Directors:
Declaration by Director (Format to be provided by us). Consent Letter by Director (Format to be provided by HG)
STEP 6 : Getting Incorporation Certificate:
After Uploading the Forms, generally within 3-7 working days, a Company Incorporation Certificate is received.
 Minimum Requirements for Private Limited Company Registration
• Minimum 2 Shareholders
• Minimum 2 Directors(The directors and shareholders can be same person
• No Minimum Capital Required
• DIN (Director Identification Number) for all the Directors
• DSC (Digital Signature Certificate) for all the Directors
• Registered Office (You can operate from your residential address. Private Limited can be Registered using your Home address.
You don’t need to invest initially in office setup.)

 Documents Required For Private Limited Company Registration:
1. Colour PP Photograph
2. PAN Card – Self Attested
3. Identity Proof – Any One Self Attested
(Driving License / Passport / Aadhar Card / Voter ID Card)
4. Address Proof – Any One Self Attested
(Latest Bank Statement / Electricity Bill / Telephone Bill / Mobile bill)

 Private Limited Company Registration Package Includes:
• 2-Digital Signature Certificate (DSC)
2-Director Identification Number (DIN)
• Company Name Approval by Ministry
• Memorandum of Association (MoA) &
Articles of Association (AoA)
• Registration Certificate
• Permanent Account Number (PAN)
• Tax Account Number (TAN)
HG corporates can help you with your company registration. They register your company in less than 10 days,
What is the procedure to register a startup company in India and how much will it cost?
 What is a private limited company?
Private limited company is a perfect start for anyone who wants to start their business to give it a separate legal identity. Private limited company can be formed with ease and its procedural compliance are also easy when compared to that of a public company.

 ADVANTAGES
A private limited company can be started off with just two members who will be the shareholders and directors.
A company enjoys separate legal identity unlike partnership firms.
Minimum capital required to incorporate a private limited company is one lakh.
Personal assets of the shareholders will not be at risk, in the event of the company facing financial distress.
A company enjoys perpetual existence unlike other forms of business i.e., the company continues to exist irrespective of the status of the owner.
 Procedure for Registration
With the introduction of form INC29, establishing a company is much easier and less time consuming.
Digital signature for at least one director is required.
If any director already possess DIN it can be used. Else, application for DIN can be made in INC 29.
Memorandum and Articles of Association should be drafted
Affidavit and declaration by first subscribers and Directors should be prepared
Duly filled INC29 should be filed with the ROC for incorporating the company stating the proposed name of the company which meets the requirements, along with the following requirements.
• MOA.
• AOA.
• Affidavit.
• Proof for registered office address along with utility bill.
• Once the application is duly filed and accepted by ROC, certificate of incorporation is issued and the company is all set to start it’s operations.

By |October 25th, 2017|Best Lawyers For Company Registration Process|Comments Off on Best Lawyers For Company Registration Process
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Lawyers For Company Registration Process

Company Registration Process

There are 5 types of companies that can be registered in India
• Sole Proprietorship Firm
• Partnership Firm
• One Person Company
• Limited Liability Partnership
• Private Limited Company

1. Sole Proprietorship Firm
A sole proprietorship business is where a single individual runs the business. There is no separation between the legal identities of the business and the businessman. In other words, business debts are the businessman’s own debts. His liability is unlimited and he is personally responsible to bear all losses of the business.
 Following are some essential features of a sole-proprietorship:
• Easy to form
• One person ownership
• Unlimited liability
• No separation between business and business owner
• Freedom of decision making
• Secrecy.
• Tax benefits.
• Business exists as long as the owner does.

 Registration of Sole Proprietorship Firm
There is no formal process for registering a Sole-proprietorship in India. Therefore, the existence of a sole proprietorship business can be established only through opening a bank account in the name of the proprietorship firm or obtaining licenses required for conducting the business under various other acts such as:
• Shops and Establishments, for the premises.
• FSSAI License Food License, if you are thinking to start food truck, restaurants, food joints, food item or consumable item packaging, food item or cosumable item delivery etc.
• GST Registration It is a mandatory for all Business or Professional entities with turnover exceeding INR 20 lakhs are required to obtain Goods & Services Tax (GST) registration compliance
• Trade License, issued by the municipal corporation of a city, allows a business owner to carry on an activity or manufacture or exchange of any commodity.
• Import Export Code (IEC), if you want to import or export.

However, please note that you don’t need to register under all these acts. The kind of registration will depend upon a) type of your business b) expected annual turnover and c) location.

2. Partnership Firm
A partnership firm is a business structure in which two or more individuals manage and operate a business in accordance with the terms and objectives set out in a Partnership Deed. All the partners have unlimited liability, which means they are personally liable for the debts of the business.
 Following are some essential features of a Partnership:
• Aim is to share profits and not losses.
• Losses, if any, will be borne by partners in their profit sharing ratio.
• Only persons who are competent to contract# can form a partnership.
• A minor cannot be a partner in a partnership. But, he is allowed to share the profits from a partnership business.
• No partner is allowed to transfer his share in partnership to any other person without the consent of all the other partners.
• There is a presumption of utmost good faith between partners.
• Every partner contributes to the business in some form or the other. It may be in the form of time, money, skills and/or goodwill.

 Registration of Partnership Firm:
A partnership firm can be registered whether at the time of its formation or even subsequently. You need to file an application with the Registrar of Firms of the area in which your business is located.
 Ensure that the following documents and prescribed fees are enclosed with the registration application :
• Application for Registration in the prescribed Form – I
• Duly filled Specimen of Affidavit
• Certified copy of the Partnership deed
• Proof of ownership of the place of business or the rental/lease agreement.

 Application for partnership registration should include the following information:
• Name of your firm
• Name of the place where business is carried on
• Names of any other place where business is carried on
• Date of partners joining the firm
• Full name and permanent address of partners.
• Duration of the firm
• Every partner needs to verify and sign the application

Once the Registrar of Firms is satisfied that the application procedure has been duly complied with, he shall record an entry of the statement in the Register of Firms and issue a Certificate of Registration.

3. One Person Company
The concept of One Person Company (OPC) was introduced by the Companies Act of 2013. It is a cross or hybrid between the sole proprietorship and company forms of business and combines the best features of both. As the name suggests, it allows a single individual to form a company. It combines the freedom of a sole proprietorship business with the limited liability and various other benefits that come with operating as a company.
 Following are some essential features of a One Person Company:
• Any natural person can form a company. i.e. an individual
• The person must be an Indian citizen or a person who is resident in India
• Such person will be the shareholder and member of the company. No other shareholder is required.
• Such shareholder must nominate a person to act as his nominee to act as the shareholder/member in the event of his/her death incapacity.
• Consent must be obtained from a person before designating him/her as the nominee.
• An OPC must have a minimum of one director.
• The person forming the company may also act as the director.
• Such company can only be incorporated as a private company.
• It may be a company limited by shares, by guarantee, or an unlimited company.
• Minimum capital requirements are the same as applicable to a private company i.e. INR One (1) Lakh.

4. Limited Liability Partnership
An LLP is a unique mode of doing business which offers a combination of the flexibility of a partnership and limited liability of a company. It is governed by the Limited Liability Partnership Act, 2008. An LLP is the most preferred route taken by startups to incorporate their business.
 Following are some essential features of a LLP:
• It is a corporate body.
• It is a legal person separate from its partners.
• All the partners have limited liability.
• It provides perpetual succession to the business.
• Requires at least two partners and at least two individuals as designated partners.
• At least one designated partner must be a resident of India.
• Winding up may be voluntary or may be initiated by a tribunal/High Court.
• The Indian Partnership Act does not apply to an LLP.
• The Central Government is allowed to apply provisions of Companies Act to an LLP.

5. Private Limited Company
Generically defined, a private company would be an association of persons who share a common purpose and pool their resources in order to achieve that purpose.
As per The Companies Act, 2013, a minimum of two persons can form a private company.

 Following are some essential features of a Private Limited Company:
Huge capital
• Raise capital from angel investors, venture funds etc.
• Maximum number of members is 200 for private company.
• Limited Liability of all the members.
• Separate Legal Entity
• The memorandum must state the word ‘private limited’ with the name of the company.
• Minimum number of directors is 2 for a private company.
• Right to transfer shares is restricted in the case of a private company.
• The minimum capital requirement of INR 1 lakh for private companies
• Use of common seal is optional.

 Private Limited Company – The most successful business type.
In a private company, the business owners hold all shares of the company privately. Shareholders may operate the business themselves, or hire directors to manage the company on their behalf. Registering a private limited company results in protection of personal assets, access to more resources, financial assistance and greater credibility.
 Limited Liability Partnership (LLP) – A corporate form of Partnership
It exhibits elements of both partnership and corporation. In LLP, one partner is not responsible or liable for another partner’s misconduct or negligence unlike a traditional partnership in which each partner has joint and several liability.
All these three forms of business have the feature if Limited Liability and Separate Legal Entity, ie, the members or partners have no personal liability. Yet, they are different from each other in various aspects.
 One Person Company (OPC) – A corporate form of Proprietorship.
One Person Company (OPC) has been recently introduced in India to promote business enterprises that are owned and managed by a single Entrepreneur. OPC allows for a single individual to own and manage the business. One Person Company is therefore a viable option for those looking to start an unregistered Proprietorship.
 Documents required for Private Limited Company Registration
For Directors/Shareholders
• One Photograph.
• Copy of PAN Card.
• Copy of Address proof – Aadhaar Card/Driving License/Passport/Voter ID.
• Copy of Bank Statement/Mobile Phone/Landline Telephone Bill.
• Copy of Aadhaar Card.

For Company Address
• Proof of Registered Address – Sale Deed/Rental Agreement
• Copy of Utility bill – Electricity/Landline telephone/Gas Bill – not older than two months.
• No Objection Certificate for use of premises, if required

It usually takes 15-20 days to Register a Private Limited Company through SPICe INC-32 (A single application for Reservation of Name, Incorporation of Company and Allotment of DIN), subject to ROC processing time.
These are four major steps:
• Acquiring Digital Signature Certificate(DSC)
• Acquiring Director Identification Number(DIN)
• Filing an eForm or New user registration
• Incorporate the company

It’s necessary to get registered yourself to run your business without any legal problem. India is a land of opportunity, no matter in which field your business is operating the chances of getting success is very high, so it just needs a start. starting an entrepreneurship in India would fetch you great success. fallow this post sincerely till you incorporate your final claim for your company. We assure one will end up in getting their business registered after following this procedure.
Private company may have two directors, but a public company must have at least three directors.

 Lets start the registration procedure: 4 Steps
Step 1: Acquire Director Identification Number (DIN)
This is the first process in registration that each director of the company should obtain their identification number. As per the amendment act 2006, acquiring a DIN is compulsory for every director i.e. as such every existing and intending directors have to obtain their DIN. To get DIN one need to file a eForm DIN-1. The DIN-1 form is available on Official site of the ministry of corporate affairs the link is DIN-1 Form.
• Register yourself on MCA Website first and have a login id. After filling DIN-1 Form, one should upload the filled form by clicking to eForm upload button on MCA website and should pay applicable fees.
• After getting generated DIN one should intimate their company about DIN. The director can intimate their company about DIN by using DIN-2 Form.
• Then company should intimate the Registrar of Corporates(ROC) about all director’s DIN through DIN-3 Form.
• If there is any change in DIN or need for any updation like change of address, personal details etc, then director should intimate this change by submitting the eForm DIN-4 Form.

Step 2: Acquire Digital Signature Certificate(DSC):
In order to ensure the security or authenticity of documents filed electronically the information act 200o demands a valid digital signature on the documents submitted electronically. This is the only and safest way that one can submit their documents electronically. The digital signature certificate should be acquired by only those agencies which are appointed by the controller of certification agencies (CCA). One should not use DSC given by any other agency which is not approved and it’s illegal to use others DSC as yours or the false one.
If you already have a digital signature then you can use the same, no need to apply for another. But do check for your digital signature validity, agencies issue DSC’s with one or two year validity after expiry you have to renew it.
One can acquire his/her Digital Signature certificates from these government listed agencies like TCS, IDBRT, MTNL, SAFESCRYPT, NIC, NCODE Solutions etc. to check out their price details of these Govt approved agencies, Go to this link.
Step 3: Create a account on MCA Portal – New user registration
This is about having a registered user account on MCA Portal for filing a eForm, for online fee payment, for different transactions as registered and business user. Creating an account is totally free of cost. To register yourself on the MCA portal, click on the register link.
Step 4: Apply for the company to be registered.
This is the final major step in a registration of your company which includes incorporating company name, Registering the office address or notice of situation of office and notice for appointment of company directors, manager and secretary. And also regarding the take and pay for their qualification shares.
• Form-1:Form-1A: Application form for availability or change of a company name. Once you apply for new company name, the MCA will suggest four different form of your company name; you have to choose one among them. To do the same you have you have to fill Form-1A and submit.Form-1: This is for application or declaration for incorporation of a company, in this form you have to fill the same name which you have chosen during application of form-1A.
• Form-18:This form is for notice of the situation of a new company office or change of situation of previously registered office.For a new company you have to fill the form with genuine office address and submit.
• Form-32:For a new company, this form is for notice for appointment of new Directors, Managers and Secretary. For an existing company, this form is for a change of directors, Manger, Secretary or company head.

After submitting these forms, once the application has been approved by MCA, you will receive a confirmation email regarding the application for incorporation of a new company, and the status of the form will get changed to Approved.

 Detailed procedure for approval of the proposed company name:
For obtaining name for your new company, An application in Form-1A needs to be filed with the Registrar of Companies (ROC) of the state in which the Registered Office of the proposed Company is to be situated to ascertain the availability of a name along with an official service fee of Rs.500/-.
You have to provide four alternative names for the proposed company. Your company name shall not resemble the name of any other company already registered or violate the provisions according to Act, 1950.
In this form you have to fill name and addresses of directors (minimum 2 for a private company and 7 for a public company). You have to mention main objects of the company and authorized capital.
In about 10 days, the ROC will inform you about approval or objections. If there are any objections then ROC will suggest you with some available names and let you choose among them. If your company name is approved then you will receive a formal letter regarding the confirmation of the same. Keep the same which will be required during registration process of the proposed company.
If you find any difficulty or encounter any problem while obtaining the company name then do contact us, We will help you to sort out your problem.
 Check these documents before submission of a company:
1. DIN of all those directors of a proposed company.
2. DSC – Digital Signature Certificate
3. Original copy the of formal letter issued by ROC regarding availability of Company name.
4. Form-1 for incorporation of a company.
5. Form-18 for situation or address of the proposed company.
6. Form-32 for particulars of proposed directors, managers and secretary.

 Formalities to be followed while incorporation of a company:
1. Obtain a TAN card
2. Obtain a Permanent account number (PAN) from income tax dept. India
3. If required: Documents obeying shop and establishment acts.
4. If required: For foreign trade, Registration documents of import export code from Director General of foreign trade.
5. If required: Registration documents of Software technologies Parks of India (STPI).
6. If required: RBI approval for foreign companies investing in India and FIPB approval.
7. Both Indian and foreign directors need to have valid Digital Signature Certificates from authorized agencies.

 Company Registration Process:
1.DSC (Digital Signature Certificate).
All Propose directors of the private limited Company should have a digital signature and digital signature will use to file the registration, ROC compliance forms, and Tax returns.
2.Director Identification No (DIN).
When a Digital signature is approved, and you will get an approval email from the Registrar of companies that you are now eligible to be a director of a company. It takes one working days to approve DIN.
3. Company Name Approval.
After a Trademark search, we will proceed to file a Name approval application to ROC on your behalf.
4.Final Incorporation & CIN.
After Name approval from the Registrar of Companies, we will file final incorporation e-form with all supporting documents like registered address proof, Declaration from directors. Registrar of companies takes 3 working days to complete the approval process of a company.
 Documents Required
From All Directors And Shareholder.
• PAN Card or Passport or Election ID Card.
• Latest Bank Statement/Telephone or Mobile Bill.
• Voter’s ID/Passport/Driver’s License.
• Passport-sized photograph of all directors and shareholder.
• Scan copy of Signature (signature should same as on PAN Card).

 Registration Procedure
A private limited company is the most common form of business entity in India. It is easy to maintain and raise funds, offers limited liability to its members, offer flexibility, easy bank loan accessibility. Read Advantages of Private Limited Company. Following are the steps involved in the registration of private limited company.

Basic requirement
There must be at least 2 members in the company.
The company shall be made for legal business and must not harm the society. The company object should not be illegal.
In case, if the registrar issue the certificate of incorporation to such business entity , then certificate will be void and registration will be itself cancelled by the Central Government and appropriate proceeding will take place against the entity and the Registrar.
Read in detail Pre-Requisites for Registration of Private Limited Company
Step 1: Obtaining Director Identification Number (DIN) & Digital Signature
The First step is
1. Obtaining Director Identification Number (DIN) for the proposed Directors in the Company
2. Obtaining Digital Signature for one of the Directors of Company.

After this, application for name of Private Limited Company must be applied.
Step 2: Applying for the name
The promoters should propose one or more suitable name for the name of company as it offers the flexibility and choice to registrar to select the name in case some names are identical or similar to registered business entities or trademark.
1. The name should not be similar or identical to any registered company or trademark.
2. The name should not be one prohibited under the ‘Emblems and names Act, 1950’.
3. The name of company must have suffix “Private limited Company”.

After submission of name, registrar will review and approve one of the name .It usually takes 3 to 5 working days to approve the name for company .
Read tips for Choosing the right name for your company registration for easy approval of name by ROC.
Step 3: Filing for Incorporation of Private Limited Company
After the name approval, promoters should submit the application, prescribed fees and below said following documents to the registrar.
1. Articles of Association, if any.
2. Memorandum of Association.
3. Declaration from Directors.
4. Affidavits of the Directors.

A declaration stating that the requirements of the Act and the rules framed there under have been compiled with. This declaration is required to be signed by an advocate of the or Supreme Court or an attorney or a pleader having the right to appear before or a High Court or a Chartered Accountant in whole time practice in India who is engaged in the formation of a company, or by a person named in the Articles as a Director, Manager or Secretary of the Company.
Besides the aforementioned documents, the company must provide relevant information regarding of its registered office within 15 days of registration or during filing of incorporation documents.
Step 4: Subscribing to the Private Limited Company
As per the Companies Act 2013, a subscriber must sign their names and must be subscribed to the shares of the company incorporated. It means each subscriber must have at least one share of the company. Each subscriber should sign the memorandum in presence of at least one witness and must clearly state the following:
1. Address
2. Personal Description
3. Occupation
4. No of shares subscribed
5. Nature of shares etc.

Likewise both (Article and Memorandum of association) must be duly signed and stamped.
Step 5: Certificate of Incorporation
After filing the above-mentioned documents and payment of necessary fees, the certificate for Company incorporation would be issued by the Registrar of Companies. Upon Incorporation, the company becomes a legal person separate from its members.
The process to register a private limited is complex and time-consuming. Our team atLegalRaasta can help startups and Entrepreneurs Register Private Limited Company in 14-15 days @ 13,999/- only (inclusive of government fee) saving 40% compared to typical CA/CS.
Registering new business in India, some official procedures a company has to follow in order to register them in Indian official records, MCA (ministry of Corporate Affairs) has to made registration process online few years back.
The registration includes some must follow rules and some registration like Digital Signature Certificate (DSC), Director Identity Number (DIN), Filing an eForm or New user registration and Incorporate the company.

1. A private limited company should have a minimum capital of Rs 1 lac. The registration fee and stamp duty depends on the capital of the company and the state in which the company is registered. The company name should reflect the business objects of the company. It should be such that it does not resemble the name of any existing companies. If the proposed names resemble any existing business entity, the Registrar of companies may reject the name application.

2. Partnership firms are not a separate legal entity; hence the partners and the partnership firm are the same. However, for income tax purposes, partnership firms are treated as a separate entity and hence need to obtain PAN from the income tax dept and file income tax returns.

3. Only a natural person can form a One Person Company. A private company or an LLP can NOT start an OPC. The member should also be a resident on India.

For more details on registering Pvt ltd,Partnership,NGO,Trust,Sole Proprietorship firm contact
HG Corporates, hgcorporates.com
To Register a Startup company in India you’ll need to take help of professional & licensed company registration service providers like us.
 Procedures for Private Limited Company Registration:
Minimum Requirements for Private Limited Company Registration
• Minimum 2 Directors (The directors and shareholders can be same person)
• Minimum 2 Shareholders.
• No Minimum Capital Required.

 Documents Required For Private Limited Company Registration:
1. Colour PP Photograph.
2. PAN Card – Self Attested.
3. Identity Proof – Any One Self Attested.
(Driving License / Passport / Aadhar Card / Voter ID Card).
4. Address Proof – Any One Self Attested.
(Latest Bank Statement / Electricity Bill / Telephone Bill / Mobile bill).

Submit the documents to Licensed & Professional Company Registration service providers like HG Corporate Advisors.
Legal procedure for registering a company as Private Limited in India:
STEP 1 :Getting a Digital Signature & DIN:
In lay man’s language Digital Signature is a kind of password which authenticate the user.DIN refers to Director Identification Number; Anyone who is proposed to be a Director of the company needs to have a DIN.
STEP 2 : Name Availability Check & Application for Name Reservation/ Approval:
We will apply for Name Approval with the ROC. A maximum of 6 Names can be provided for Name approval.
STEP 3 : Drafting of Memorandum of Association (MOA) & Article of Association (AOA). , Filing & Uploading of Incorporation Forms:
• We consult with you and draft your Memorandum of Association & Article of Association for your kind perusal so that your Company is incorporated with the best drafted Memorandum & Articles.
• Form 1 has been replaced with Form INC-7: For Application of Incorporation of Company.
• Documents Required: Memorandum of Association (To be prepared by us.
• Article of Association (To be prepared by us).
• Affidavit from Subscriber (Non Acceptance of Public Deposit – Format to be provided by us).
• Id Proof of Subscriber (/Passport/Voter Id/Aadhar/Driving License – Any ONE).
• Residential Proof of Subscriber (Latest Bank Statement/Latest Mobile Bill/Latest Telephone Bill / Latest Electricity Bill).
• INC 9 & INC 10 as attachment in Notarized Stamp-paper (Format shall be provided by us).

STEP 4 : Company Address Form 22 for situation of Office Address
STEP 5 : DIR-12 for information regarding the Directors:
Declaration by Director (Format to be provided by us). Consent Letter by Director (Format to be provided by us)
STEP 6 : Getting Incorporation Certificate:
After Uploading the Forms, generally within 3-7 working days, a Company Incorporation Certificate is received.
Private Limited Company Registration Package Includes:
• 2-Digital Signature Certificate (DSC).
• 2-Director Identification Number (DIN).
• Company Name Approval by Ministry.
• Memorandum of Association (MoA) &
• Articles of Association (AoA).
• Registration Certificate.
• Permanent Account Number (PAN).
• Tax Account Number (TAN).

A guide on how to register Startup or new business in India with documents needed, fees breakdown and time to complete company registration.
A startup is an energy booster for the Indian economy. Whether your startup is a sole proprietorship or a partnership business, it’s better to give your business a legal existence. The reason being, a registered company, can be closed down only by legal authorities in case of any unforeseen issues. Here we look at the steps to register a start-up or a new business in India.
The Ministry of Corporate Affairs has made it convenient for the new startups by introducing the online registration. In May 2015, Ministry of Corporate Affairs introduced a five-in-one form to make the process of registration easier. The new form known as Integrated Incorporation Form INC-29 will require you to fill only one form instead of the tedious process of filling out eight forms. An advantage of the new form is that it reduces the interaction with the authorities at the various levels.
Now you can register your new business from the comfort of your home. There are four steps that you need to do follow.
 Apply for Director Identification Number(DIN)
The first and foremost process is to the registration of the company directors. You should create a login id in the Legal Raasta website.
A nominal amount of Rs 500 for DIN will be charged and normally it takes a day to get this number.
 Acquire Digital Signature Certificate (DSC)
This is important to ensure the authenticity of the documents that you file electronically. Also, understand that the digital signature certificate should be authenticated by the agencies appointed by the controller of certificate agencies.
You would have to pay a nominal amount Rs 1299/-. It will get at least four days to get the certificate.

 Approval of the company name and certificate of Incorporation
The company name will be approved by Registrar of Company (ROC). Once the name is approved by ROC apply for the Certificate of Incorporation. This is done by filling out Form 1, Form 18 and Form 32.
You would have to pay Rs 1000/- for the approval of the name and the Certificate of Incorporation, the amount can be anywhere between Rs 1000 to 4000.
The name approval will take at least two days while the certificate of incorporation will take a week.
The following documents that have to be attached to Form 1 while applying for the certificate of Incorporation.
• Signed copy of the Memorandum of Association (MOA).
• Signed copies of Articles of Association (AOA).

The power of Attorney from the various subscribers on judicial stamp paper worth Rs 100 and finally, the identification of the subscribers.
 Apply for Permanent Account Number and Tax Account Number for the registered company
The PAN card can be obtained from Income Tax Department, India by paying a nominal amount of INR 94. You can apply for the TAN card by visiting the website TIN. You will be charged INR 62.
The total time span to obtain these is seven days.
The other formalities that you can go about during this period include getting a rubber stamp of the company, registering for VAT and professional tax, employees provident fund and health insurance and so on.
 Procedures for Private Limited Company Registration:
STEP 1 :Getting a Digital Signature & DIN:
In lay man’s language Digital Signature is a kind of password which authenticate the user.DIN refers to Director Identification Number; Anyone who is proposed to be a Director of the company needs to have a DIN.
STEP 2 : Name Availability Check & Application for Name Reservation/ Approval:
HG will apply for Name Approval with the ROC. A maximum of 6 Names can be provided for Name approval.
STEP 3 : Drafting of Memorandum of Association (MOA) & Article of Association (AOA). , Filing & Uploading of Incorporation Forms:
• HG Corporate Advisors consults with you and draft your Memorandum of Association & Article of Association for your kind perusal so that your Company is incorporated with the best drafted Memorandum & Articles.
• Form 1 has been replaced with Form INC-7: For Application of Incorporation of Company.
• Documents Required: Memorandum of Association (To be prepared by HG)
• Article of Association (To be prepared by HG)
• Affidavit from Subscriber (Non Acceptance of Public Deposit – Format to be provided by HG)
• Id Proof of Subscriber (/Passport/Voter Id/Aadhar/Driving License – Any ONE)
• Residential Proof of Subscriber (Latest Bank Statement/Latest Mobile Bill/Latest Telephone Bill / Latest Electricity Bill)
• INC 9 & INC 10 as attachment in Notarized Stamp-paper (Format shall be provided by HG)

STEP 4 : Company Address Form 22 for situation of Office Address
STEP 5 : DIR-12 for information regarding the Directors:
Declaration by Director (Format to be provided by us). Consent Letter by Director (Format to be provided by HG)
STEP 6 : Getting Incorporation Certificate:
After Uploading the Forms, generally within 3-7 working days, a Company Incorporation Certificate is received.
 Minimum Requirements for Private Limited Company Registration
• Minimum 2 Shareholders
• Minimum 2 Directors(The directors and shareholders can be same person
• No Minimum Capital Required
• DIN (Director Identification Number) for all the Directors
• DSC (Digital Signature Certificate) for all the Directors
• Registered Office (You can operate from your residential address. Private Limited can be Registered using your Home address.
You don’t need to invest initially in office setup.)

 Documents Required For Private Limited Company Registration:
1. Colour PP Photograph
2. PAN Card – Self Attested
3. Identity Proof – Any One Self Attested
(Driving License / Passport / Aadhar Card / Voter ID Card)
4. Address Proof – Any One Self Attested
(Latest Bank Statement / Electricity Bill / Telephone Bill / Mobile bill)

 Private Limited Company Registration Package Includes:
• 2-Digital Signature Certificate (DSC)
2-Director Identification Number (DIN)
• Company Name Approval by Ministry
• Memorandum of Association (MoA) &
Articles of Association (AoA)
• Registration Certificate
• Permanent Account Number (PAN)
• Tax Account Number (TAN)
HG corporates can help you with your company registration. They register your company in less than 10 days,
What is the procedure to register a startup company in India and how much will it cost?
 What is a private limited company?
Private limited company is a perfect start for anyone who wants to start their business to give it a separate legal identity. Private limited company can be formed with ease and its procedural compliance are also easy when compared to that of a public company.

 ADVANTAGES
A private limited company can be started off with just two members who will be the shareholders and directors.
A company enjoys separate legal identity unlike partnership firms.
Minimum capital required to incorporate a private limited company is one lakh.
Personal assets of the shareholders will not be at risk, in the event of the company facing financial distress.
A company enjoys perpetual existence unlike other forms of business i.e., the company continues to exist irrespective of the status of the owner.
 Procedure for Registration
With the introduction of form INC29, establishing a company is much easier and less time consuming.
Digital signature for at least one director is required.
If any director already possess DIN it can be used. Else, application for DIN can be made in INC 29.
Memorandum and Articles of Association should be drafted
Affidavit and declaration by first subscribers and Directors should be prepared
Duly filled INC29 should be filed with the ROC for incorporating the company stating the proposed name of the company which meets the requirements, along with the following requirements.
• MOA.
• AOA.
• Affidavit.
• Proof for registered office address along with utility bill.
• Once the application is duly filed and accepted by ROC, certificate of incorporation is issued and the company is all set to start it’s operations.

By |October 25th, 2017|Lawyers For Company Registration Process|Comments Off on Lawyers For Company Registration Process
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