Family Law
- Who will the children live with?
- What will happen to the house?
- How to divide the rest of the marital assets?
- How long will it take to resolve the divorce and how much will it cost?
Our team has a wealth of experience and knowledge in handling legal complexities. We understand that needing a family lawyer will most likely be the most important legal advice you will ever seek. That’s why our expert, friendly team can offer you confidential, informative advice and assistance, in an environment you can trust.
We represent individuals in all aspects of Family Law such as Domestic & International Divorce, Mutual Consent, Financial Issues, Spousal Maintenance, Lump Sum Orders, Transfer of Properties, Domestic Violence, Civil Partnership Dissolution, Prenuptial Agreements, Separation, Chabitation Agreements Children Matters (where they will live and how often they spend time with you), Court Proceedings and Domestic Abuse. We are fully equipped to deal with Indian marriages as well as those outside the jurisdiction.
Merlyn Law Firm’s family law team works with the objective of serving your legal needs when you need it the most. The lawyers are supported by excellent staff which ensures that our clients receive unparalleled service. We understand the importance of providing sound legal advice and offering pragmatic solutions, which are tailored to our clients’ particular set of circumstances.
International Divorces
With the rise in the mobility of families and international marriages, the consequences of marital and relationship breakdown increasingly have a cross – jurisdictional dimension. Cases involving conflict of law, international movement of children and the application of foreign law are becoming common, particularly in India.
We can provide advice on all family cases with an international dimension as well as assisting international clients with a wide variety of questions about how the Indian legal system might apply to them, taking advantage of our links with leading family lawyers from around the globe where necessary.
The choice of jurisdiction for divorce can have a significant impact on the size and structure of a financial settlement. Rules regarding which assets are eligible for inclusion in the divorce settlement and disclosure requirements or those regarding maintenance vary from country to country. Our team regularly advises on choice of forum, sometimes referred to as “forum shopping”.
Merlyn Law Firm is at the forefront of thought leadership in the field of international family law and our team members have contributed to a number of international divorce cases & settlements.
Divorce Advocate
Divorce can be confusing and complicated. Our team will provide guidance in relation to the divorce process, your children and finances. As members of Resolution, we provide clear and constructive answers that cater to your individual needs in the best interests of you and your family.
Financial Issues
It can be a daunting exercise when considering all your financial assets. However we can assist you through the process. There are a number of provisions that you can consider applying for:
Maintenance Order is an order that requires the financially stronger spouse to make monthly payments to the financially weaker spouse and in some instances for the children.
Lump sum order is when one spouse is ordered to pay to the other spouse a specific sum.
Property adjustment order is where property is transferred to one spouse from the other.
Pension orders is where a pension is either split in two (not necessarily in equal shares) for the benefit of the other spouse or where one persons pension is directed to be paid to the other.
Initially we will always try and reach a financial settlement on your behalf with the other side outside of court, as this is the most cost effective and fastest resolution. We would begin by ensuring full financial disclosure with the other side and requesting the same. Once a settlement is achieved between the parties then a consent order is drafted according to the terms of the agreement. The draft consent order is then submitted to the court to be finalised. By having the settlement finalised at court it ensures that both parties are bound to the terms and do not break them at a later date. Of course it is not always possible to reach an agreement and at times matters end up at court. In such circumstances we will act in your best interest. We work closely with a number of accountants who are experts in this field. Our experience and skills are among the finest in India.
Children’s Issues
Every parent is entitled to see their child. Our specialised team can help determine issues such as where your child will live, who will make the major decisions for the child and the amount of time they spends with each parent. Our specialist team will advise you of your rights.
Domestic Violence
Grandparents Rights
Children should have the right to see both their parents and grandparents. Often the rights of grandparents to see their children are overlooked and everybody suffers as a result. But grandparents do have rights when it comes to their grandchildren. Our specialist family law team can help you gain access to and contact with your loved ones.
Father’s Rights
Sometimes the law can seem unfair when it comes to seeing your children but rest assured, fathers do have rights. It is important to know what they are. Our specialised team has helped many fathers establish contact and build relationships with their own children, some for the very first time.
Prenuptial Agreements
Today, greater importance is being placed on prenuptial agreements as a way of safeguarding personal assets in the event of a divorce. We will guide you through the entire prenuptial process from start to finish, including drafting the agreement itself.
Annulment
Maintenance of Women In India
Maintenance, as a concept, has its roots in the social justice system of a civilised society. The Supreme Court, explaining the rationale behind providing maintenance in the case of Badshah v. Urmila Badshah Godse and Anr, has held that the “provision of maintenance. Aims at empowering the destitute and achieving social justice or equality and dignity of the individual. The law regulates relationships between people. It reflects the values of society.” In India, the right to claim maintenance is statutorily available under both personal and general laws, and such a right cannot be taken away by way of an agreement to the contrary.
Maintenance can be awarded during the course of the proceedings (i.e. maintenance pendente lite) or at the conclusion thereof (i.e. permanent maintenance). The right to claim maintenance is available to wives, children and parents. Under certain personal laws, even husbands (who are unable to maintain themselves) are entitled to claim maintenance. This article discusses the provisions under various personal and general laws that entitle a wife to claim maintenance.
Maintenance under Personal Laws:
Hindu Law, Christian Law and Parsi Law
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Category
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Hindu Law
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Christian Law
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Parsi Law
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|---|---|---|---|
| Relevant Provisions | Section 24 and 25 of the Hindu Marriage Act, 1955 (“HMA”). | Sections 36 to 38 of the Divorce Act, 1869 (“DA”). | Section 39 to 41 of the Parsi Marriage and Divorce Act, 1936 (“PMDA”). |
| Interim Maintenance (Maintenance pendente lite) |
Under Section 24, both a husband and a wife having no independent income to support themselves, can apply to the Court for interim maintenance3. The Court can direct the respondent to bear the expenses of the proceedings and provide such monthly sums to the applicant, as it deems fit, during the course of the proceedings. |
Under Section 36, a Christian wife can claim interim maintenance. The Court can direct the husband to bear the expenses of the proceedings and provide such alimony pending the suit as it deems just. |
Under Section 39 the Court can grant interim maintenance to a husband or a wife having no independent income to support themselves. The Court can direct the respondent to bear the expenses of the proceedings and provide such weekly or monthly sums to the applicant, as it deems fit, during the course of the proceedings. |
| Permanent Maintenance | Under Section 25, the Court can pass an order, at time of passing a decree in any proceeding commenced under the HMA or at any time subsequent thereto, granting permanent maintenance to a husband or a wife for his or her support on an application being made by him or her. Such permanent maintenance can be in the form of a gross sum or a monthly amount or a periodical amount for a term not exceeding the life of the applicant. |
An order directing the husband to pay permanent maintenance to his wife can be passed by the Court under Section 376. Such permanent maintenance can be in the form of a gross sum, or an annual sum or monthly or weekly sums for any term not exceeding the life of the applicant. |
Under Section 40, the Court can pass an order, at time of passing a decree in any proceeding commenced under the PMDA or at any time subsequent thereto, granting permanent maintenance to a husband or a wife for his or her support on an application being made by him or her8. Such permanent maintenance may be in the form of a gross sum or a monthly amount or a periodical amount for a term not exceeding the life of the applicant. |
| Miscellaneous | Section 18 of the Hindu Adoption and Maintenance Act, 1956 (“HA&MA”) entitles a Hindu wife to claim maintenance from her husband during her lifetime whilst living separately from her husband. |
Muslim Law:
Earlier, a Muslim woman could claim maintenance only under the Muslim personal law as laid down in the Quran under which a husband was liable to pay maintenance to his wife only during the period of ‘iddat’. However, the Supreme Court has, vide its landmark judgment in the Shah Bano case held that a Muslim woman is entitled to claim maintenance under Section 125 of the Criminal Procedure Code, 1973 irrespective of Muslim personal law. In this regard, it is pertinent to note that immediately after the Shah Bano verdict, the Muslim Women (Protection of Rights on Divorce) Act, 1986 (“MWA“) was enacted whereunder inter alia a Muslim woman is entitled to claim from her husband (i) a reasonable and fair provision and maintenance; (ii) an amount equal to the sum of mahror dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; (iii) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or her husband or any relatives of the husband or his friends; and (iv) in cases where the divorced woman herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance for a period of two years from the respective dates of birth of such children. Under Section 3 of the MWA, a Muslim husband is obligated to pay maintenance to his divorced wife within the iddat period. This provision has, in the past, been misinterpreted to mean that the husband is legally obligated to maintain his wife only “during” the iddat period. However, the Supreme Court in the landmark case of Daniel Latiffi v. Union of India has clarified that the maintenance payable by the husband to his wife during the iddat period covers the time period beyond the iddat period as well. Further, under the provisions of the MWA a divorced woman who is unable to maintain herself beyond the iddatperiod can also claim maintenance from her relatives and in case she has no relatives, from the State Wakf Board.
Maintenance under General Laws:
Married women in India are entitled to claim maintenance (both interim as well as permanent) under general laws as well, notwithstanding their right under their respective personal laws.
Section 125 of the Code of Criminal Procedure, 1973 (“CrPC”):
Section 125 of CrPC obligates a husband to maintain his wife (who is otherwise unable to maintain herself). The Supreme Court in Bhuwan Mohan Singh v. Meena & Ors has held that Section 125 “was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal… She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband”. A wife is entitled to claim both interim maintenance as well as permanent maintenance under Section 125 of the CrPC. Further, as per the explanation (b) to Section 125(1), the term “wife” includes a divorced woman as well. In Sunita Kachwaha v. Anil Kachwaha, the Supreme Court has held that a wife would not be denied maintenance merely because she had a source of income.
Section 20 of the Protection of Women from Domestic Violence Act, 2005 (“PWDA”):
An aggrieved wife is entitled to receive maintenance under Section 20 of the PWDA in addition to an order of maintenance under Section 125 of the CrPC or any other law in force. Such maintenance amount must be adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed. Further, in Lalita Toppo v. The State of Jharkhand and Anr., the Supreme Court has recognised the right of a woman in a live-in relationship to claim maintenance from her partner under the PWDA.
Return of articles
The hot issue between husband and wife when they decide to move forward with a contested divorce is the disposal of properties owned by each party. One of the most pressing issues is whether either party can claim properties belonging to them which is in the custody of the opposite party.
Section 27 of the Hindu Marriage Act, 1955, talks about the disposal of spousal property in the following words:
“In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.”
The Hon’ble Supreme Court in Pratibha Rani versus Suraj Kumar and Anr, 1985 SC 628, at page 638 stated that traditional presents given to a bride in a Hindu wedding may be divided into three categories, viz.—
- Property intended for the exclusive use of the bride, e.g., her personal jewellery, wearing apparel, etc.
- Articles of dowry which may be for common use and enjoyment in the matrimonial home, and
- Articles gave as presents to the husband or the parent-in-law and other members of his family.
In another case, while dealing with Section 27 of the Hindu Marriage Act, 1955, the Supreme Court said that Section 27 provided an ‘alternate remedy’ to the wife to bring a suit for stridhan property which the husband refused to return.
- Jewellery and other property of divorced wife;
- The property as contemplated by Section 27 is not the only property which is given to the wife at the time of marriage. It includes the property given to the parties before or after marriage also so long as it is relatable to the marriage.
- The expression at or about the time of marriage has to be properly construed to include all such properties.
- The Court has to adjudicate upon to ascertain the property of the wife before passing a decree against the husband and cannot decline claim of wife for want of jurisdiction to adjudicate upon the issue of property.
Section 27 of the Hindu Marriage Act, 1955, and Section 406 of the Indian Penal Code, 1860:
In the case of stridhan property, the title of such property always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, and if the husband or any other member of his family commits such an offence of misappropriating such property then they will be punished for the offence of criminal breach of trust under sections 405 and 406 IPC.
Section 27 of the Hindu Marriage Act, 1955, merely provides for an alternate remedy and does not touch or affect in any way the criminal liability of the husband in case it is proved that he has dishonestly misappropriated the stridhan of his wife. It cannot also be spelt out from any textbook or the sastric law of the Hindus that these two Acts take away the stridhan right of a woman and at the most, these Acts merely modify the concept of stridhan.
It is not feasible to suppose that when a civil remedy is available, criminal prosecution is completely barred. The remedy available under Section 27 of the Hindu Marriage Act, 1955, is under civil law and the remedy available under Section 406 is under criminal law; therefore, they are not mutually exclusive but coextensive and essentially differ in their content and consequences.
Identifying Property Ownership:
Various courts in India have observed that there may be several instances where a property immovable property is given to the husband by the wife’s family and a deed registered in his exclusive name. Merely because registration of the immovable property is done in the name of the husband, it does not necessarily mean that it belongs to the husband alone and, therefore, is outside the scope of Section 27 of the Act.
For example, if a car is presented at or about the time of marriage to the husband and registration is made in the name of the husband, it cannot be said that the property is outside the scope of Section 27 of the Act. Similarly, there may be a property which is presented either to the husband or the wife or jointly to them, and which cannot be so identified but the party presenting may have contemplated that what was being presented would be used jointly belong jointly. Such property will also, be subject to Section 27.
Mutual Consent:
The procedure for a mutual consent divorce can be simplified in 4 stages:
- Drafting your mutual consent petition> Filing your case & Numbering your case
- Date of hearing given after 6 months > Filing of Applications to waive off mandatory waiting period of 6 months.
- Evidence of Husband & Wife taken on Oath
- Arguments & Orders
Note:
- In cases where the parties have been living separately for a period of one year, a waiver petition and affidavit can be filed to obtain a decree of divorce within a period of 30 days from the date of filing the petition.
- The terms and conditions for mutual consent would consist of child custody , alimony & return of articles which can be entered into only upon mutual agreement between the parties.
Contested Divorce:
The procedure for a Contested Divorce can be simplified in 6 stages:
- Drafting your contested petition> Filing your case & Numbering your case.
- Notice to your spouse through court & registered post & appearance of wife.
- Referred to Mediation.
- Non starter report for mediation filed > counter of spouse directed to be filed
- Evidence of Spouses & Cross Examination
- Final Arguments > Orders
Note:
- All interim applications filed by spouses will be taken at first priority except applications filed for “return of articles & disposal of property”.
- Legal strategies are adopted depending on the approach taken by the spouses.
