Mentoassociates.com – Legal Articles

1. This Act protects the rights of Muslim Women who have been divorced by their husbands or who have obtained the divorce from their husbands.

2. A divorced Muslim women is entitled to reasonable and fair provision and maintenance within Iddat period from her former husband. Similarly the divorced Muslim woman is entitled to all the properties given to her before or at the time of marriage or after her marriage by her relatives, friends, husband, relatives of husband and friends of the husband.

3. A Divorced Muslim Women is also entitled to an amount equal to the sum of dower agreed to be paid to her at the time of her marriage or at any time there after.

4. If a divorced Muslim Women herself maintains the children born to her before or after her divorce, the husband shall make her a reasonable and fair provision and pay her maintenance for 2 years from the date of birth of children.

5. If the husband fails to discharge his duties under this act, the wife is entitled to make an application to jurisdictional magistrate for suitable orders. If a husband fails to comply with the order of the magistrate, the magistrate is empowered to sentence such person to an imprisonment for a term which may extend to 1 year.

6. A magistrate can also pass necessary orders of maintenance, against the relatives of divorced Muslim Women who has not remarried and who is not able to look after herself. The relatives may include children, parents etc. If a divorced woman has no relatives the magistrate can order the state Wakf board to pay such maintenance.

In Daniel Latif –vs- Union of India, AIR 2001 SC 3958 the Supreme Court held that the husband is duty bound to give maintenance to the divorced wife and she is entitled for lifelong post divorce maintenance within iddat period

1. If the marriage was consummated, the wife may marry another husband after the completion of iddat. If the marriage was not consummated she can marry immediately. If the marriage was consummated and if the husband had up to 4 wives at the time of divorce (including the divorced wife) he may marry another wife after the completion of iddat of the divorced wife.

2. If the marriage was consummated the wife is entitled to immediate payment of the whole of the unpaid Dower. If the marriage was not consummated and the amount of Dower is specified then she is entitled to half of the amount. If the marriage was consummated and no amount is specified she is only entitled to 3 articles of dress. If marriage is dissolved upon the apostasy of the wife she is entitled to the whole of dower if consummation has taken place.

3. When the divorce becomes irrevocable, mutual rights of the inheritance comes to an end. If the divorce was pronounced during the death illness, the wife’s right to inheritance continues to the expiry of her iddat.

4. After the divorce has become irrevocable, if the divorced couple engages in sexual intercourse the same is unlawful. Children as a result of such intercourse are illegitimate.

5. The parties are generally permitted to remarry after the divorce.

1. Father is bound to maintain his sons until the age of puberty and daughters until they are married. Even if the children are in the custody of the mother, father is duty bound to maintain them.

2. If the father is poor and incapable of earning the mother is bound to maintain the children. If both the father and mother are incapable to maintain the children, the duty lies on the grandfather.

3. Children in easy circumstances are bound to maintain their poor parents. A person is bound to maintain his paternal and maternal grandparents if they are poor.

4. If the father neglects to maintain his legitimate or illegitimate children, the children can sue him under the provisions of Sec.125 of Cr PC, 1974.

1. Application for appointment of a guardian for the property or person of a minor comes under the purview of Guardians and Wards Act 1890. Minor is a person who has not completed the age of 18 years. The courts normally keep in mind the welfare of the minor while passing an order on guardianship.

2. The mother is entitled to the custody of the male child until he has completed the age of 7 years and the female child until she attains puberty. This right continues even after she is divorced by the father of the child. If the mother remarries, custody of the children goes to the father.

3. After the mother, the custody of the boy under the age of 7 years and the girl who has not attained Puberty belongs to the female relatives in an order.

4. In the default of mother and other female relative the custody of boy below 7 years and the girl who has not attained puberty goes to father and other relatives in an order. However a male is entitled to the custody of an unmarried girl, only if he stands within the prohibited degree of relationship with her (consanguinity and affinity). Even if a girl is married, but has not attained puberty, the mother is entitled to the custody of the girl against the husband of the girl.

5. Father is entitled to the custody of boy over 7 years of age and unmarried girl who has attained Puberty. In default of father the custody belongs to paternal relations in an order.

6. Custody of illegitimate children belongs to mother and her relations.

7. The following persons are entitled to be the guardian of the property of the minor in the following order:
i) The father.
ii) The executor appointed by will of father.
iii) The father’s father.
iv)The executor appointed by will of father’s father.
In the absence of the above legal guardians the court can appoint a guardian for the property of the minor.

8. The person who has voluntarily placed himself in charge of the person and property of a minor is called a de facto guardian. He is neither a legal guardian nor a guardian appointed by the court.

9. A legal guardian normally has no power to sell the property of the minor. But he has the power in few exceptional cases. The guardian appointed by the court can alienate or encumber the property of the minor only with the permission of the court. A de facto guardian has no power to alienate or encumber the property of minor. A guardian of a minor cannot bind a minor or his estate by an agreement of purchase of an immovable property.

10.The thumb rule for custody of children is in whose custody, the interests of the minor children are best protected. The same has been upheld by the courts in Syed Saleemuddin-vs-Dr. Rukhasana (AIR 2001 SC 2172) and Chandrakala Menon –vs- Vipin Menon (1993) 2 SCC 6.

In Noor Saba Khatton –vs- Mohammaed Quasim AIR 1997 SC 3280, Supreme Court held that the Muslim father is duty bound to pay maintenance to his children until they are capable of managing themselves or until they are married

1. Dower is also known as Mahr. It is money or property which a Muslim wife is entitled from the husband in consideration of marriage. A husband can settle any amount he likes by way of dower upon his wife. The amount of dower may be fixed either before the marriage or at the time of marriage or after the marriage. The Dower amount can be increased after marriage. A contract of Dower made by a father on behalf of the minor son is binding on the son.

2. If the amount of Dower is not fixed, the wife is entitled to what is known as Proper Dower. The wife is entitled to Proper Dower even if the marriage was performed with a condition that she should not claim any Dower. The Proper Dower is fixed taking into consideration the amount of Dower settled upon other female members of wife’s family.

3. The Dower becomes confirmed under the following situations:
a. By consummation of marriage.
b. By valid retirement.
c. By the death of husband/wife.

4. The Dower which is payable on demand is known as ‘Prompt Dower’. The Dower which is payable on dissolution of marriage by death or divorce is known as ‘Deferred Dower’

5. The wife may remit the Dower or any part thereof in favour of the husband or his heirs even without consideration. If the Dower is not paid the wife or her heirs can file a suit to claim the same. The Muslim wife may refuse to live with her husband and admit him to sexual intercourse so long as the Prompt Dower is not paid.

6. The heirs of a deceased Mohamadean are liable for Dower debt of the deceased, proportionate to their share in the estate of the deceased. The Dower is a debt, at the same time it is an unsecured debt. The wife is not entitled for a charge on the husband’s property though such a charge may be created by an agreement.

7. A widow who has lawfully obtained possession of the property of her late husband has the right to retain that possession until her Dower is paid. The right to hold possession does not give the widow any title to the property. But if she is disposed she can sue for recovery of Possession. The right to retain the physical possession of the property does not arise to the Muslim wife during the continuation of marriage; it arises only on the dissolution of marriage either by death or divorce. A Muslim widow who retains possession of her husband’s property under a Dower claim has no right to alienate the property by sale, mortgage etc. If she alienates the property, the alienation is valid only to the extent of her share. It does not affect the share of other heirs.

1. Under the Muslim law, the husband is duty bound to maintain wife provided (i) she is faithful to him and (ii) obeys his reasonable orders. If a wife refuses herself to the husband due to non payment of prompt dower or she leaves the house of husband on account of his cruelty, the wife is entitled for maintenance. If the husband does not maintain the wife, the wife is entitled to sue him for maintenance or she can apply for an order of maintenance under the provisions of CrPc, 1974.

2. After divorce, a Muslim wife is entitled for maintenance during the period of iddath. If a wife is not informed about the divorce, she is entitled for maintenance until the same is informed to her. Agreements between husband and wife for future maintenance are perfectly legal.

MARRIAGE UNDER THE MUSLIM LAW

1. Nature: Under the Muslim law, marriage is a contract for the procreation and legalizing of children.

2. Eligibility: Every Mahomedan who has sound mind and who has attained puberty can enter into a contract of marriage. Lunatics and minors who have not attained puberty may be contracted in marriage by their guardian. Puberty is presumed at the age of 15 years.

3. Procedure for a marriage: There should be a proposal made by one or behalf of one of the parties and an acceptance by or behalf of the other party to the marriage. The proposal and acceptance shall be in the presence and hearing of two male or one male and two female adult Mohammedans as witnesses. The proposal and acceptance must be expressed at one meeting. Any writing or religious ceremony is not essential for a Muslim marriage.

4. Presumption of marriage: Under the following circumstances, a marriage is presumed, in the absence of direct evidence.
a. Prolonged and continual co-habitation as husband and wife.
b. Acknowledgement by man of the paternity of the child born to the woman.
c. Acknowledgement by man of the woman as his wife.

5. Irregular marriage: An irregular marriage is not unlawful, in itself, but unlawful for something else. The prohibition may be temporary or relative or the irregularity may arise from accidental circumstances. An irregular marriage has no legal effect before consummation. The children of an irregular marriage are legitimate. It may be terminated by either party before or after consummation. The following marriages are irregular marriages:
a. A marriage without witnesses.
b. If a Mahommedan marries a fifth wife when he already has four wives.
c. A marriage with a woman before completion of her iddat.
d. Marriage of a Mahomedan male with an idolatress or fire worshipper.
e. Marriage of a Mahommedan woman with a Jewish, Christian, an idolator or a fire worshipper.
e. Marriages where there is unlawful conjunction.

6. Void marriages: A void marriage is an unlawful marriage. There is absolute prohibition against such a marriage. It is no marriage at all and does not create any civil rights or obligations between the parties. The children of a void marriage are illegitimate. The following marriages are void:
a. The marriage of Mahommedan who has attained puberty and is of sound mind, but without his consent.
b. A marriage with a woman who has her husband alive or who has not been divorced by him.
c. Marriage of a Mahommedan with his mother, grandmother, daughter, grand daughter, his sister, niece or great niece (consanguinity reasons)
d. Marriage of a Mahommedan with his wife’s mother or grand mother, wife’s daughter or grand daughter, wife of his father or paternal grandfather, wife of his son, son’s son or daughter’s son(affinity reasons)
e. A marriage prohibited by fosterage.

7. Iddat: Iddat is the period during which a woman who is divorced or whose husband is dead is prohibited from remarrying. The prohibition is imposed to ascertain whether she is pregnant by her husband to avoid the confusion of parentage.

8. Inter religious marriages:
a. A Mahomedan male may marry a Jewish or Christian woman but not an idolatress or fire worshipper.
b. A Mahommedan woman cannot marry a Jewish, Christian, an idolator or a fire worshipper.

9. Sunni Shia marriages: A Sunni can marry a Shia.

10. Muta Marriage: a. Muta marriages are temporary marriages practised among Shias.
b. A Shia male may contract a muta marriage with a woman professing Mahomedan, Christian, Jewish or a fire worshipper.
c. A Shia woman cannot contract muta marriage with a non Muslim.
d. Conditions for the muta marriage: The period of co habitation and the amount of dower shall be fixed.
e. A muta marriage does not create mutual rights of inheritance between the man and woman, but the children are legitimate and can inherit from both the parents. A muta marriage is dissolved on the expiry of the term. A husband can put an end to the contract of marriage even before the expiration of the period.

11. Marriage of minors:

a. Minors (who have not attained puberty) are not competent to enter into a contract of marriage. They may be contracted in marriage by their guardian.

b. The right to contract a minor in a marriage lies successively to father, paternal grandfather, brother and other male relations on the father’s side. Thereafter the right lies on mother, maternal uncle or aunt and other maternal relations.

c. A minor girl can dissolve her marriage, on attaining puberty, under the provisions of the Dissolution of Muslim Marriages Act, 1939. Any repudiation must be confirmed by the court.

In Javed-vs- State ofr Haryana, AIR 2003 SC 3057, Supreme Court has held that Polygamy can be regulated or prohibited by legislation in the interests of public order, morality and health or by any law providing for social reform or welfare.

For example, Rule 28 of the Karnataka Civil Service Conduct rules, 1966 prohibits the second marriage for a government servant, who has a wife living, without the permission of government, even though the second marriage is permitted under his personal law. Similarly no female government servant shall marry any person, who has a wife living, without the permission of the government.

Cruelty is one of the grounds for a divorce petition under Hindu Marriage Act, 1955 and various other matrimonial laws of India. The Supreme Court of India through various decisions has explained the concept of cruelty.

1. In N.G. Dastane(Dr) vs S. Dastane reported in (1975)2 SCC 326, Supreme court has observed that conduct charged as cruelty should be of such a character as to cause in the mind of the Petitioner, a reasonable apprehension that it is harmful or injurious to live with the respondent.

2. In V. Bhagat vs D. Bhagat, reported in (1994)1 SCC 337, the Supreme Court held that the mental cruelty must be of such a nature that the parties cannot be reasonable be expected to live together. While arriving at such conclusion regard must be had to the social status, educational level of the parties, the society they move in and all other relevant facts and circumstances.

3. In the case of Savithri Pandey vs Prem Chandra Pandey reported in (2002)2 SCC 73, the Supreme Court observed that cruelty must be distinguished from the ordinary tear and wear of the life. It cannot be decided on the basis of the sensitivity of the Petitioner. But the same has to be adjudged on the basis of course of conduct , which would be in general, be dangerous for a spouse to live with each other.

4. In Parveen Mehta vs Indrajit Mehta (2002)5 SCC 706, the Supreme Court observed that the approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other.

5. In the case of A. Jayachandra vs Aneel Kaur (2005)2 SCC 22 the apex court held that for physical cruelty there can be tangible and direct evidence but in mental cruelty there may not be direct evidence. When there is no direct evidence, courts are required to probe into the mental process and mental effect of incidence that are brought out in evidence.

6. In the case of Vinitha Saxena vs Pankaj Pandit (2006)3 SCC 778 the Supreme Court held that what constitutes mental cruelty will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and deleterious effect of it in the mental attitude, necessary for maintaining a conducive matrimonial home.

7. In the case of Samar Ghosh vs Jaya Ghosh (2007)4 SCC 511 the Supreme Court observed that no uniform standard can be laid down for guidance with regard to mental cruelty. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a lengthy period, where relationship has deteriorated to an extent that, the wronged party finds it extremely difficult to live with other party any longer.

8. In the case of Naveen Kohli vs Neelu Kholi (2006)4 SCC 558, the Supreme Court held that Public Interest demands not only that the married status should as far as possible, as long as possible and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

9. The honorable High Court of Karnataka in the case A. Anil Kumar vs Vanishree A, reported in ILR 2009 Kar 3028, laid down the following principles with regard to the concept of cruelty:-

a. On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

b. On comprehensive appraisal of entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably put up with such conduct and continue to live with other party.

c. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

d. Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger of apprehension must be very grave, substantial and weighty.

e. Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

f. Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

g. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with other party any longer, may amount to mental cruelty.

10. The Supreme Court  in the case of Shobha Rani vs Madhukar Reddi  reported in (1988)1 SCC 105 has held that:

a. Cruelty may be mental or physical, intentional or unintentional. If it is physical, it will be easy for the court to determine it. If it is mental, the problem presents difficulty. It is a matter of inference to be drawn by taking into account the nature of the conduct and its effects on the complaining spouse. There may be occasions where the conduct itself is bad enough and it amounts to cruelty; in such cases the impact of such conduct need not be considered.

b. There has been a marked change in the life around us. The courts should not search for standards in life, while appreciating mental cruelty. Matrimonial duties and responsibilities are of varying degrees from house to house and from person to person. A set of facts, stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may depend upon the life style of the parties, their economic and social conditions, their cultural and human values etc.

c. The categories of cruelty are not closed, each case may be different. New types of cruelty may crop up in new cases. The conduct which is complained of as cruelty by one spouse may not be so, for the other spouse. Intention is not a necessary element in cruelty.

11. In Romesh Chander vs Savithri AIR 1995 SC 851, the Supreme Court held that if the marriage is dead and there is no chance of being retrieved it is better to bring it to an end.

12. The honourable High Court of Karnataka in the case of Hoovamma  vs Vishwanth reported in  ILR 2009 Kar 4193 has held that.

a. Cruelty is not defined under the Hindu Marriage Act. It is impossible to give a comprehensive definition to cruelty. It has been used in relation to human conduct or human behaviour.

b. If the spouses are living separately for a considerable time and there is no love lost between them, the marriage is dead emotionally and practically and there is no chance of being retrieved. Continuance of marital relationship for name sake itself constitutes a cruelty of mind. In such circumstances, trying to find out who is the cause for such sorry state of affairs would be an exercise in futility

In Y. Narashimaha Rao and others V/s Y. Venkatalakshmi and another reported in 1991 SCC (Cri) 626, the Honorable Supreme Court has extensively dealt with the rules for recognizing foreign matrimonial judgments in India.Relying on provision of Sec.13 of CPC and giving a wider interpretation of the same, the Supreme Court held as follows:

1) A foreign matrimonial judgment will not be recognized in India if it is not pronounced by a court of competent jurisdiction. The court shall be that court which the act or law under which the parties are married recognizes as the court of competent jurisdiction to entertain the matrimonial dispute. However if both parties voluntarily and unconditionally subject to the jurisdiction of the foreign court, then the same will be applicable.
For eg, as per the Hindu Marriage Act 1955, the jurisdictional court is the court within whose local limits,
a)The marriage was solemnized.
b)The respondent at the time of the petition resides or
c)Parties last resided together.
Hence a foreign court which does not qualify any of these descriptions cannot be a competent court to decide upon a Hindu marriage.

2) If the foreign judgments is not given on the merits of the case, then the Indian courts does not recognize the same. This is further interpreted as follows:
a) Decision of the foreign court shall be on the ground available under the law under which the parties are married. For instance irretrievable breakdown of marriage is not yet a ground for divorce of Hindu Marriage in India even though the Honorable Supreme Court by exercising powers under article 142 of the constitution has granted divorce in few cases under this ground.Hence to summarize, if a foreign court grants divorce in a Hindu Marriage on the ground of the irretrievable breakdown of marriage, then the same shall not be recognized in India.

b) The Respondent to the matrimonial proceedings shall be duly served and unconditionally submit himself/herself to the jurisdiction of the court and contest the claim or agrees to the passing of the decree with/without appearance.

3) If the matrimonial judgment is based on the refusal to recognize the laws of India in cases where such law is applicable, the decision of the foreign court is not recognized in India. Marriages in India are either under customary or the statutory law in force here. Hence the only law that is applicable to the matrimonial dispute is the one under which parties are married and no other law.

4) A foreign matrimonial judgment will be recognized in India only if the proceedings are not opposed to natural justice. This includes a) Duly serving the respondent with the process of the court.
b) Ascertaining whether the respondent was in a position to present/ represent himself/herself and contest the proceedings effectively.
c) The court shall require the Petitioner to make necessary provisions for the Respondent to defend including the cost of travel, residence and litigation if necessary.

5) If the Foreign matrimonial judgment is obtained by fraud, then the same will not be applicable in India. The fraud may be in relation to the merits of the case or in relation to the jurisdiction of the courts. This aspect was covered by Honorable Supreme Court in the decision Smt.Satya V/s Theja Singh (AIR 1975 SC 105).

6) Similarly if a foreign judgment sustains a claim founded on a breach of any law in force in India the same is not applicable in India.

1) How are children affected by Divorce?
Ans) A Divorce cuts off the relationship between the husband and wife. But no Divorce order can cut off the relationship between the parents and the children. Socially and emotionally, children of divorced parents will have trauma and injury. Irrespective of the custody of children with one parent after Divorce, the other parent will have an access and visitation rights over the children.

2) How to file for a Divorce?
Ans) A Divorce needs to be filed in a jurisdictional family Court, preferably with the assistance of an expert family lawyer. The following points need to be kept in mind before filing of a Divorce petition.
a)Whether the particular court has jurisdiction.
b) Whether any waiting period is there before approaching the court.
c) Whether the petition is under the correct provision of Law.
d) Whether sufficient grounds are urged in the petition.
e) Whether sufficient documents are produced along with the petition.
f) Whether the prayer is properly worded.

3) What are the documents required for a Divorce petition?
Ans) The following are the basic documents required for a Divorce petition in India:
a) Marriage photo
b) Marriage invitation card
c) Marriage certificate (if the same is registered)

4) How long does it take to get a Divorce in India?
Ans) A mutual consent Divorce petition may take about one month if the waiting period of 6 months is dispensed by court. If waiting period is not dispensed, it may take about 7-8 months.
             For a contesting Divorce petition, it may take about 1-1 ½   years to conclude. An exparte Divorce proceeding may conclude within 6-9 months.

5) What is an exparte Divorce petition?
Ans) On filing of a Divorce petition, the Court will issue a notice to the other party for appearance. After the receipt of the notice, if the other side does not appear in the court, the court declares the matter as exparte. Thereafter the matter will proceed purely in a one sided manner and the Court will pass the decree accordingly.

6) How can I find out if a Divorce has been filed?
Ans) By enquiry in the family register of a family court one can find out whether the Divorce has been filed or not.

7) How long should I wait to remarry after Divorce?
Ans) One has to wait for the appeal period to remarry after the decree of Divorce. In India the appeal period is normally 90 days.

8) Are fathers entitled for the custody of children during Divorce?
Ans) A Divorce proceeding normally ends with a decision on the custody of the children. With whom the welfare of the children is best protected, is the yard stick that decides the custody of the children. As per most of the Indian personal Laws, father is the natural guardian of the minor. However mothers are usually preferred by Indian Courts to give the custody of the children. However this does not rule out entitlement of the father to get the custody of the children in appropriate cases.