Guidelines for Mental cruelty for Divorce

Authour : Advocate K.P.Satish Kumar M.L. Madras High Court. Leading Divorce Lawyer in Chennai. After the solemnization of the marriage when any of the spouse either the husband or the wife is treated with cruelty, they are eligible for divorce. Section 13 (i) (a) of the Hindu marriage has not defined the term cruelty. But the courts has interpreted that cruelty falls under Physical and mental cruelty. And the cruelty may be intentional or unintentional. If it is physical, the court will have no problem to determine it . It is a question of fact and degree . If it is mental, the problem presents difficulty. The Supreme court at various circumstances has summed up the situations which are fall under mental cruelty. The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour . It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. The conception of legal cruelty undergoes changes according to the changes and advancement of social concept and standards of living. To establish legal cruelty, it is not necessary that physical violence should be used. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. Each case may be different. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Mental Cruelty in Section 13(1)(ia) of Hindu Marriage Act can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. What is cruelty in one case may not amount to cruelty in the other case :- How to fix Mental cruelty. 1.The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious belief, human values and their value system. 2.Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. 3.Question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status and environment in which they live. Guidelines for Mental cruelty : 1.Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. It may be words, gestures or by mere silence, violent or non-violent 2. Cruelty should be wilful unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger. 3. Proof beyond doubt, as in criminal trials is not required to prove cruelty. 4.In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence - For proof of mental cruelty Court has to find out nature of cruel treatment, impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. 5.There may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal - Then the impact or injurious effect on the other spouse need not be enquired into or considered. 6.Whether the conduct of a spouse amounted to cruelty has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. 7.Mere trivial irritations, quarrels between spouses, which happen in day- to-day married life, may also not amount to cruelty. 8.The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. Circumstances to Mental cruelty :- 1. Wife publishing a notice in newspaper that her husband was womaniser, drunkard and a man of bad habits. It was mala fide and the motive was to demolish the reputation of the husband in the society. It created a dent in his reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. 2. Husband getting ready to go to factory, the wife sometimes used to crumple the ironed clothes. 3. The wife who hides the keys of the motorcycle when the husband goes to job. 4. The wife closes the main gate when the husband goes to job. 5. Wife launched prosecution under Section 498-A against husband and other relatives while ended in acquittal. 6. Wife made baseless allegation in written statement that her husband had extra marital relations with another woman. 7. Husband and wife both professional doctors. Wife advised her husband not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Not to work behind the closed doors with certain members of the staff. There were clear manifestations of her suspecting the husband's fidelity, character and reputation. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty. By Team Daniel & Daniel Attorneys & Solicitors Helpline :- 9884883318

Hindu women cannot claim property rights from Muslim Husband

A Hindu women who marry a Muslim Male is invalid, Supreme Court declares law in Mohamed Salim Case on 22/1/2019. The Kerala Girl Valliamma who married Mohammed Illias and gave a bith to a male child Samsudeen, who subsequently married Aliyarkunju after his death. The supreme court denied Valliamma as a legal heir of Illias. The SC citing the mohamedan law which states as “ A Mahomedan male may contract a valid marriage not only with a Mahomedan women, but also with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a fire worshipper. A Marriage however, with an idolatress or a fire worshiper, is not void, but merely invalid.” Supreme court has not cleared whether a invalid marriage which exists for a long years can be validated under law. But SC has stated that the person who claims wife status under an invalid marriage cannot obtain legal heir status as wife. And the property of the Muslim male husband don’t devolve to the wife under invalid marriages. But Supreme Court has approved the children’s are given legitimate status and who were born under the invalid marriage can be treated as legal heirs for the purpose of the property. The position that a marriage between a Hindu woman and Muslim man is merely irregular and the issue from such wedlock is legitimate has also been affirmed by various High Courts. (Aisha Bi v. Saraswathi Fathima, (2012) 3 LW 937 (Mad), Ihsan Hassan Khan v. Panna Lal, AIR 1928 Pat 19). The marriage of a Muslim man with an idolater or fire ¬worshipper is neither a valid nor a void marriage, but is merely an irregular marriage. Any child born out of such wedlock is entitled to claim a share in his father’s property. It would not be out of place to emphasise at this juncture that since Hindus are idol worshippers, which includes worship of physical images/statues through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female with a Muslim male is not a regular or valid marriage, but merely an irregular marriage. The Authour K.P.Satish Kumar M.L. is the Advocate in Madras High Court By Team Daniel & Daniel Join Our Whattsapp Group @ 9840802218

NCW is a Lame Duck or Legal Guardian for women

NCW is a Lame Duck or Legal Guardian for women. Suo motto notice in Mayavathi case to UP MLA Sadhana Singh by the National women commission for the defamatory remarks makes the nation to watch the powers of the NCW. Is NCW is the super power to protect the women’s rights or only opinion makers in the crime against women. NCW is only created for the recommendations of welfare of the women’s. But the Act also gives some powers to receive complaints from the women’s. The question is whether a effective remedy is available to women or mere a eye washer. NCW rejects the following complaints from the very nature of filing a complaint i) Vague and anonymous complaints ii) Civil Disputes iii) Service, labour/industrial disputes not involving any deprivation of women’s rights iv) Matter pending in Court Only the commission can handle the cases pertaining to 1.deprivation of women’s rights; 2. non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development; 3.non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing relief to women, and take up the issues arising out of such matters with appropriate authorities; In the case of Mayavathi is the matter of defamation made by the MLA. Even though the NCW finds guilt on the part of the MLA, the NCW has no power to punish the MLA. It can only recommend the proper authorities to take action on it. A question rises why can’t a person directly approach the proper authority for legal remedy without wasting time in NCW. The Indian legislation should give more powers to the NCW with the power of Punishing the accused. Unless NCW only act as paper worker not as a protector for women’s. Authour K.P.Satish Kumar M.L. Advocate High Court Madras By Team Daniel & Daniel Join Our Whattsapp Group 9840802218.

Divorce Procedure for Muslim Men - helpline 9962999008

Three year imprisonment for pronouncing Talaq and no bail to the husband until the wife gives consent for the bail not only makes the Muslim male in turmoil but Muslim males have no law for divorce right now. How can a Muslim men can divorce right now in India. What is the solution for them. The family court of Chennai is entertaining divorce petition from Muslim in the Suit format but it also places a hurdle that the maintainability of the suit is decided on the trial only by the presiding Judge. The Indian Government has not said that any other format of Talaq is valid and the court also not discloses whether the Declaration suit for Divorce is valid. I Don’t know why the entire Muslim community is keeping quiet when there is a lawlessness situation for Muslim men in case of Divorce and matrimonial dispute when the female counterparts are protected with the Divorce and Matrimonial laws. Whether the lawmakers doesn’t see this a gender inequality. After the implementation of The Muslim Women (Protection of Rights on Marriage) Act, 2019 ,Where the new law makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. Now Pronouncing talaq was made as a cognizable offence, attracting up to three years imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.) The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.) The Law provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail. A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate. In Chennai the Principal Family court has took a decision to try the Muslim Male divorce case by the family court and even the maintainability should be decided by the family court. It is unsolvable question whether the grounds of divorce is according to the Muslim personal law or not. The Author K.P.Satish Kumar M.L. is the leading Lawyer in Madras High Court Join our Whattsapp Group @ 9840802218.

4 Important things to file Divorce in Chennai – Helpline 9962999008

Before filing divorce in Chennai one should fulfill the 4 important things for purpose of jurisdiction. 1. Residence of wife : A Hindu wife can file a petition for Divorce where she resides. This never permits for the Christian and Muslim Wives. Even though it is a religious arbitrariness permitted by law, the Hindu wife enjoys this right which was denied to other religions. 2. Residence of the Opposite party : A wife can file a divorce petition where the husband resides, vice versa the husband can file a divorce petition where the wife resides. Residence of opposite party creates the jurisdiction to file a Divorce petition in Chennai. 3. Place of Marriage : If the Temple, Church, Mosque, Hotel, Marriage Hall or the register office in which the marriage was performed under special marriage Act and any other place where the marriage was performed within the limits of the Family court jurisdiction at Chennai, then a person both the wife and the husband can file divorce petition in Chennai. 4. Lastly resided Together : If the spouse whom they lastly resided at the Court limits of Chennai, then they can file divorce at Chennai. But if the place is not lastly resided then they loose the right to file divorce petition in Chennai. When a person satisfied the above conditions then they have complete right to file a divorce case in Chennai. The Author K.P.Satish Kumar is the leading Divorce lawyer in Chennai. By Team Daniel & Daniel Helpline: 9962999008.

Can a women marry a person whom was divorced by herself ? Helpline :- 9962999008

In a rare incident in Gurugram near Delhi a MNC employee who was forcibly divorced her husband by her parents. The college girl who married against the will of her parents was put to an end to her marriage under threat of her parents. Recently by a complaint given by the girl the Delhi Commission for women rescue the 30 year old girl and now she was married to her ex-husband. The question of legality is whether the second marriage with her same husband whom she divorce previously is valid under law. In case of Muslims and want to marry as per Muslim law then after getting divorce decree you have to marry with a third person , and after consumption of marriage again, he should divorce, then you can again get marry with the same person. Unless he divorces the second wife, he cannot marry his divorced wife legally. Such things prevails in Muslim Community. And in the same time a person cannot go two formats of marriage with the same person simultaneously. If a women marries a person under Hindu law and subsequently marries under special marriage Act, only the Hindu marriage is a valid one and they cannot claim rights under special marriage Act. The second marriage with the same person is not valid under law. In law under Christian marriage Act one person can be from any other religion and should compulsory a Christian. The other religious person can marry a Christian boy or Girl without changing his religion. When such marriage took place and subsequently he or she under goes other marriage under their own religion, then the second marriage is void under law. When one format of marriage is subsisting a person cannot go under another form of marriage under another format. But in a interesting question can a women marry the same person after divorcing him. The Muslim law never permits. Remarriage to an ex-spouse was forbidden during some eras of history. Biblical Jewish law, in Deuteronomy 24:1-4, allowed a man to divorce his wife if she displeased him, but stipulated that if his wife then married another man, and the second marriage ended in divorce, she could not remarry her first husband. During the Middle Ages, a primary teacher of the Catholic church's canon law, St. Thomas Aquinas, ruled in "Summa Theologica" that divorce was permissible only if a wife committed adultery or followed another faith instead of Christianity. An ex-wife divorced for adultery was not allowed to remarry. If an ex-wife repented of her adultery, her ex-husband was allowed to remarry her. But the Christian Marriage Act has not made any hurdles in re-marring the same person after divorcing him. In Hindu Laws the section 5 of Hindu Marriage Act has not imposed any conditions regarding the validity of a divorced person marring again. The Author K.P.Satish Kumar is the leading Divorce lawyer in Chennai. By Team Daniel & Daniel Helpline: 9962999008.

Divorce Petition against Aishwarya Rai - How the divorce problem will be solved

Divorce Petition was filed against Aishwarya Rai by her husband in Patna. The marriage tie between the powerful families in the country has now come to an end. Aishwarya Rai husband simply says that I cannot live with her any more. In India divorce cannot filed for no reasons by simply stating that “ I cannot live with her any more”. In India divorce are granted on limited grounds for Hindus. A person can file Divorce on the grounds of Adultery and Cruelty ( Both Mental and Physical Cruelty ). Royal and stardom families usually finish the divorce by Mutual consent without making allegation of other parties. This we can seen in case of Soundarya Rajinikanth. The stardom families never want to file on the ground of Adultery and the same will spread viral within minutes. So they choose to settle the matter within their families and file divorce by mutual consent. But in the case of Aishwarya Rai the words and expression given by her husband was not clear whether he filed on which ground for divorce. Even doors are opened to adultery. But in case of Adultery the adulterer should be impleaded in the divorce petition. His words are also given that he was strongly hurt in his heart, it might seems that he was subjected to cruelty by her wife Aishwarya Rai. Even Aishwarya Rai husband has not revealed what kind of cruelty that he was subjected. But this case cannot come to any end without disclosing any reason. Aishwarya Rai should face full fledged trial, since both the families are national reputed family. The grounds cannot be hided even the divorce procedure will go in camera proceedings. But the top families will never like to conduct the case for years and pour garbage on themselves every day. Let us see how the former chief minister’s son will handle his case and how the grand daughter of the former chief minister of Bihar also handle the case. But in law at any stage they can convert this contested divorce in mutual consent. The Authour K.P.Satish Kumar M.L. is the leading Divorce lawyer in Chennai. By Team Daniel & Daniel Helpline: 9962999008.