Wife has right to ex-hubby’s inheritance

Himanshi Dhawan TNN 

New Delhi: A wife will get a share in her husband’s inherited or inheritable marital property on divorce, though the exact quantum of the compensation has been left to the discretion of the judge, according to a legislation cleared by the Union Cabinet on Wednesday. 
    The Cabinet also cleared the proposal that in cases where divorce has been sought on mutual consent of both parties, the judiciary has the discretion to grant a divorce to one party after three years, even if the man and the wife are no longer on the same page. 

Proposal to give wife equal share in marital property moderated 
New Delhi: Recommendations of a GoM on Marriage Laws Amendment Bill will now be amended suitably before being brought to Parliament during the monsoonsession, beginning August 5. 
    By not quantifying the amount of compensation, the government has moderated its earlier proposal to give a wife “equal” share in marital property. The ministers felt that a judge could decide on the quantum of compensation after taking into account an entire set of considerations such as the disposable income of both the husband and wife, conditions like who will bear the primary responsibility of raising the children and claimants on “inheritable property”. 
    The proposal to give a woman share in “inheritable” property had run into rough weather in May because of a conflict of opinions within the government.


Source:::: The Times of India, 18-07-2013, p.01. http://epaper.timesofindia.com/Default/Client.asp?Daily=TOIM&showST=true&login=default&pub=TOI&Enter=true&Skin=TOINEW

Man entitled to divorce if wife doesn’t let his parents stay with them, rules HC

Nikunj Soni Ahmedabad

In a significant verdict, the Gujarat high court has said a husband is entitled to divorce if his wife does not allow his parents to stay with them and also prevents him from taking care of the parents. The bench of chief justice Bhaskar Bhattacharya and justice JB Pardiwala on Monday granted divorce to a Surat-based doctor saying that the behaviour of his wife, also a doctor, amounted to ‘mental cruelty’. The petition for divorce was filed by the husband who had sought dissolution of their 15-year-old marriage. “The court granted divorce, holding that the wife’s actions amounted to mental cruelty towards the husband,” said AY Kogje, counsel for the husband. “We had sought dissolution of the marriage as the wife did not want her in-laws to stay with them and also prevented her husband from keeping any contact with his parents. The court ruled that such action can be covered under the definition of mental cruelty,” the lawyer said. Milind Dave (name changed) had filed for divorce from Mitali (name changed) on the ground that his wife had not allowed his father and mother to stay with them.  Not only that, the wife had also prevented him from keeping his mother with them after his father died of blood cancer. According to the petition, in 2007 too the husband had filed for divorce in the Surat family court on the ground of mental cruelty caused by his wife by refusing to allow his parents to stay with them at their house in Surat. However, the court in 2012 rejected the husband’s plea. Milind then filed an appeal in the high court. He put several grounds and evidence against his doctor-wife.  According to the petition, the wife had not only objected to his parents staying with them, she had also objected to his going to Ahmedabad to take care of his father who was then suffering from blood cancer. Milind’s parents were then living in Ahmedabad.

Source::::  DNA < 23-04-2013, p.2, http://epaper.dnaindia.com/story.aspx?id=44218&boxid=32735&ed_date=2013-4-23&ed_code=820009&ed_page=11

Divorce granted abroad valid: HC

Overrules decision of Bandra family court which ignored US verdict

Mustafa Plumber

The Bombay high court recently quashed and set aside an order of the Bandra family court allowing a wife to live with her estranged husband overlooking a divorce decree passed by the judicial district court of Harris County, Texas, United States of America.  According to the court, a wife cannot exercise her right to live with her husband in the US by invoking the provisions of restitution of conjugal rights in a Mumbai court once she has contested and the local court in US has declared them as divorced. While setting aside the order passed on July 31, the court said, “Once the decree of divorce is granted by a foreign court after the parties submit to its jurisdiction and after contest or agreement, the marriage stands dissolved. Nothing further survives in the marriage. Therefore conjugal rights cannot be restituted.” The couple married in 2006 and went to the US in the same year. They lived together there until 2010. In the meantime, they had disputes and the husband filed a petition for divorce on the ground of irretrievable breakdown of marriage, and cruelty. The wife filed a counter claim. The parties applied for, opposed and ultimately accepted an interim order by consent. The interim order restrained the parties from entering each other’s places of residence. The husband was told to pay house rent, car and motor cycle loan and phone bill up to the end of July, 2010.  After this interim order was passed, the wife came to India on August 22, 2010. She filed the petition for restitution of conjugal rights and an application under the Domestic Violence Act against the husband, his father and mother. The wife instructed her attorney to withdraw her counter claim and sent emails to the court in the US. Hence, the petition for divorce filed by the husband was to proceed without a counter claim and without her defence. The wife argued that the judicial district court in the US would have no jurisdiction and the decree of divorce passed would not become a final judgement conclusive upon both parties. She further argued that the grounds for divorce would be different in the courts of the US and hence no decree of divorce can stand in India. She also said that the parties were domiciled in India and the Hindu Marriage Act, 1955 would apply. The high court, however, dismissed all her contentions and set aside the family court order, thus holding the divorce granted by the foreign court as correct. Source:::: DNA, 29-10-2012, p.05, http://epaper.dnaindia.com/story.aspx?id=30613&boxid=13219&ed_date=2012-10-29&ed_code=820009&ed_page=7

‘Pune family court made an error in judgment’

Rosy Sequeira TNN 

Mumbai: The Bombay high court on Monday quashed the Pune family court’s order granting divorce to Pramila Ghante’s husband Shankar and said the lower court had made an “error” to equate infertility with impotency. Pramila’s advocate Y S Bhate argued that the impotency charge was levelled by Shankar to regularize his second marriage, from which he has two children. But Shankar’s advocate countered it by saying Pramila has relative impotency as the sexual relations between the couple were not satisfactory. 

    The judges said under section 12 (1) (a) of the Hindu Marriage Act, impotency is a ground for nullity of marriage but not infertility and there is a marked difference between the two. “In the absence of material on record showing the impotency, or to be more specific, frigidity of the wife, so as to render the consummation of the marriage impossible, it cannot be said that the provision of the section is attracted,” Justice Joshi wrote for the bench. 

    The family court in its “crystal clear” conclusion said that Pramila was impotent as she did not bear a child after 16 years of marriage, was unable to leave her job and join Shankar at his places of work to give him every satisfaction and she was unable to conceive even after taking medical treatment. But the bench stated, “We must say that the family court had definitely committed an error in arriving at such a conclusion—thus treating impotency and infertility at par, ignoring various (court) decisions on this aspect. The pleading and evidence at best would support the fact that the wife was incapable of giving birth to a child.” 

    The judges also noted that from September 4, 1981 to July 7, 1982 the couple resided together every weekend—Saturdays and Sundays. They said this was substantive evidence that was presented before the family court and established the fact that there was consummation of marriage at least for some period and even two years prior to alleged separation. So, the case did not attract grounds of desertion. 

    “In our considered view, though for most of the period after marriage the spouses were staying at their respective places of service, they had definitely cohabited/consummated the marriage, though unfortunately the wife could not give birth to any child out of such cohabitation,” they said. The judges said evidence suggests that the wife was given treatment for “birth of child and not for the problem of relative impotency. Indisputably, even after the unsuccessful medical treatment given to the wife, the parties continued their relationship,” the judges said. 

Infertility no ground for divorce 
Impotency is defined as physical incapacity of accomplishing the sexual act, while infertility means inability to conceive a child. In law, infertility is no ground for getting a divorce while impotency is ground for annulling the marriage. Section 12 (1) (a) of the Hindu Marriage Act provides for annulling the marriage on the ground that ‘that the marriage has not been consummated owing to the impotence of the respondent (either husband or wife)’. Even judgments delivered so far speak of non-consummation of the marriage due to impotency. In other words, the legislature has not prescribed infertility of a spouse as a ground for annulling the marriage if such spouse is capable of being a party to normal coitus. Although according to some of the dictionaries, the allegation of impotence is attributable only to men, the Hindu Marriage Act has, however, adopted the broader view that even a wife can be impotent if she is unable to be a party to normal coitus.

SOURCE::: The Times of India, 24-07-2012, p.05. http://epaper.timesofindia.com/Default/Client.asp?Daily=TOIM&showST=true&login=default&pub=TOI&Enter=true&Skin=TOINEW

Powai businessman gives 1cr and a flat for divorce

Shibu Thomas TNN 

Mumbai: A flat and Rs 1 crore is what a city resident will pay to his estranged wife and two minor children as permanent alimony and maintenance in one of the biggest divorce settlements inked before the Bombay high court. A division bench of Justice A M Khanwilkar and Justice A R Joshi last week gave its approval to the settlement agreed upon by Powai residents Arnab and Piyali Sen. “Since the couple was inclined to amicably settle the matter and had even drawn up the terms of settlement, it would be appropriate and in the interest of their children, who are now grown up and need special attention for further and higher education, to finalize the terms,” said the judges, while adding that they hoped the couple understood that “they have to act responsibly and not create any untoward situation which would jeopardize the settlement terms”. 

    As per the settlement Arnab, a businessman, is allowed to sell off his sprawling flat in a 36-storey tower in Hiranandani Gardens, where his wife and two minor children currently reside. Flats in the area sell for around Rs 20,000/sq ft. After paying bank and society dues, Arnab will invest 50% of the proceeds in a new flat in the name of Piyali and their son and daughter. The remainder will go to Arnab, who will also have to pay his wife Rs 50 lakh permanent alimony and Rs 25 lakh each to his children as permanent maintenance. 


Wife agrees to give up claim to property 

Mumbai: Businessman Arnab Sen has agreed to pay a huge sum as alimony and maintenance to finalize his divorce withwifePiyali.TheRs25lakh that he will pay his minor son and daughter as permanent maintenance will be put into a fixed deposit, and they will be entitled to withdraw the proceedswhen they turn21. 

    Once the flat is purchased and Piyali and the children move in, the couple will approachthefamily courtfor a divorce by mutual consent. The couple has also agreed to withdraw all criminal and civil cases that they have filed against each other. Piyali also assured the court that once she receivesher alimonyshewould have noclaim over the property owned by Arnab or his family. She also agreed to let Arnab haveweekly accesstothekids. 

    The matter has been posted for hearing on August 2, when the couple would inform the judges about the compliance of the settlementterms. Arnab had moved the family courtin 2010for divorce.The family courthad granted maintenance to the two children, which the HC subsequently fixed at Rs 12,500 per month for each child. The HC asked Arnab to pay Rs 25,000 as monthly maintenance for each child till he deposits the permanent maintenance. (Names of the couple changed to protect the family’s identity).


Soource::: The Times of India, 18-07-2012, p.01. http://epaper.timesofindia.com/Default/Client.asp?Daily=TOIM&showST=true&login=default&pub=TOI&Enter=true&Skin=TOINEW

ORDER QUASHED

Man must prove why he had to leave wife: HC

Shibu Thomas TNN 

Mumbai: The onus is on a man to prove that he had very good reasons for leaving his wife, the Bombay high court has ruled. Two years after a family court dismissed a Goregaon resident Seema Holkar’s plea, seeking restitution of conjugal rights, and granted divorce to her husband, Prashant Holkar, on the grounds that it was the wife’s responsibility to prove that he was not justified in leaving her, the high court said the order was based on a wrong interpretation of the law. 
 
    Prashant moved the family court in 2010, seeking divorce. Seema later sought maintenance and restoration of conjugal rights. But when the family court rejected her claims, she filed an appeal in the high court.  “The edifice on which the family court’s judgment rests cannot stand the test of judicial scrutiny,” said a division bench of Justice A M Khanwilkar and Justice A R Joshi. The judges referred to section 9 of the Hindu Marriage Act, which deals with an application filed for the restoration of marriage rights by a man or woman, whose spouse has left him/her. It says, “Where a question arises whether there has been reasonable excuse for withdrawal from society, the burden of proving the excuse shall be on the person who has withdrawn from the society.” 
 
    For the present case, the HC said, “The husband must establish that there was reasonable excuse for him for withdrawal from the society of the wife. The onus in establishing it is on the husband in the proceeding filed by the wife for the restitution of conjugal rights.” Quashing the trial court’s judgment, the HC relegated the matter to the family court to reconsider Seema’s plea. The HC also told Prashant to continue paying maintenance that will cover their Goregaon home’s EMI, flat maintenance, bills and the educational expenses of their minor son. (Names changed to protect identity).

Source::: The Times of India, 14-07-2012, p.3. http://epaper.timesofindia.com/Default/Client.asp?Daily=TOIM&showST=true&login=default&pub=TOI&Enter=true&Skin=TOINEW