Please help
shilpa
(Querist) 01 October 2013
This query is : Resolved
i got married one year ago. from the very first day my husband told me he was not ready for marriage and mental tourer was there by all family members. my marriage was also not consummate. now my husband wants to get separate. will i be able to get maintenance or compensation? My husband wants to do mutual consent but doesn't wants to give neither maintenance nor even my jewellery. i dont want to go for long legal process. please advice what should i do?
ABDUL RAZIQUE
(Expert) 02 October 2013
You may file 498A with Domestic voilence Act along with recovery of STRIDHAN, 125 CrPc for maintenance.
If you do not want to go for long legal process then judge herself, there will be no any better advice for you.
Rajendra K Goyal
(Expert) 02 October 2013
Without legal battle it is doubt, he would accept demand of maintenance or any alimony.
shilpa
(Querist) 07 November 2013
Thank you Abdul sir and Rajendra sir for you reply.i went to the police station for 498A but police asked me to write an application and replied that they will call my husband and ask his opinion as well on this. if police will found that i am victim then only they will accept 498A else they will refuse my application.
ABDUL RAZIQUE
(Expert) 07 November 2013
police officer duty is record the incident and forward to court for judgement they have no right to refuse to maintain any general diary or application however the police do so , you can file 156(3) before Judicial Magistrate.
for further procedure consult local lawyer.
shilpa
(Querist) 08 November 2013
thank you sir.
shilpa
(Querist) 06 December 2013
Under hindu marriage act 1955 13B how much time it will take to get decree of divorce after filing the mutual consent petition? all streedhan and alimony wife can get at the day of signing of Mutual consent or at the day of decree of divorce?
what is customary divorce?
ABDUL RAZIQUE
(Expert) 06 December 2013
READ CAREFULLY ABOUT CUSTOMARY DIVORCE.
The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29(2) providing that nothing in the Act can affect any right, recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. Thus, a marriage which may not be permissible to be dissolved as per the provisions of the Act can still be dissolved if the party relying on a custom can successfully plead and prove it. This shows that a valid and recognised customary law of divorce will prevail over the provisions of the Act and thus it shares an inverse relationship with the provisions of the Act, which restrict the right of the spouses to get divorce on limited grounds only. It must be noted that the customary law of divorce can be relied upon only if it satisfies certain well-accepted principles, as enumerated by the Courts from time to time. The characteristics of a valid and binding custom or usage empowering the parties to obtain divorce are:
(1) it must be of immemorial existence, it must be reasonable, it must, be certain and it must be continuous. Every custom must have to be in existence preceding memory of man and if the proof was carried back as far as living memory would go, it should be presumed that the right claimed had existed from time of legal memory[3],
(2) it is the essence of special usages modifying the ordinary law that they should be ancient and invariable; it is further essential that they should be established to be so, by clear and unambiguous evidence and that it is only by means of such findings that the Courts can be assured of their existence and that they possess the conditions of antiquity and continuity and certainty on which alone their legal title to recognition depends. Custom must be proved and the burden of proof is on the person who asserts it[4],
(3) after the existence of a custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence and it is for this reason that such an evidence is allowable as an explanation to the general rule[5],
(4) the breach of a custom in a particular instance need not destroy it for all times[6],
(5) the material customs must be proved in the first instance by calling witnesses acquainted with them until a particular custom has by frequent proof in the Court becomes so notorious that the Courts take judicial notice of it. A custom cannot be extended by logical process[7],
(6) an oral evidence as to instances, which can be proved, by documentary evidence cannot be fairly relied upon to establish custom when no satisfactory explanation for withholding the best evidence is given. Custom cannot be extended by analogy and it cannot be established by a priori method[8], and
(7) the ordinary rule is that a custom, general or otherwise, has to be proved under Section 57 of the Evidence Act. However, nothing need be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under Section 57(1) of the Evidence Act[9].
The response of the courts in India is two fold. On the one hand they respect the mandates of the valid and well-recognised customs whereas on the other hand any attempt, which fails to satisfy the rigours of public policy and societal interests, is thwarted at the very threshold. The courts are also very conscious to ensure that the requirement of the existence of a valid custom are duly fulfilled and they must be expressly pleaded and clearly established before any relief is granted. The general impression is that since these customs are going against the basic theme and policy of the Act, they must be construed narrowly and strictly. At the same time once these customs are validly recognised even in the limited, narrowed and restricted parameters of societal interests, they are given their due weight age and the wisdom of courts is not substituted for their wisdom and recognition.
In Shakuntalabai v V.L.V. Kulkarni[13] the Supreme Court held that custom must be proved and the burden of proof is on the person who asserts it. A custom cannot be extended by logical process. The Court observed: “ Customs cannot be extended by analogy and it cannot be established by a priori method. Further, nothing need be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under section 57(1) of the Evidence Act. The Court entertaining no doubt that there has been ancient and unbroken customs of dissolution of marriage and of Serai Udiki marriage among the Panchamasal Lingayats which was judicially noticed by the Courts, and that the marriage in the instant case, of the fourth defendant with Gurulingappa was proved to have been customarily dissolved and that she was subsequently legally married with Gurappa in the valid customary form of Udiki marriage, whereafter, she lived with Gurappa as husband and wife until Gurappa died, and that, thereafter, she enjoyed the family pension by dint of her being nominated as wife of Gurappa to the knowledge of all concerned. She was accepted by the community as wife of Gurappa even after his death. There is, therefore, no scope for declaring the marriage illegal posthumously”.
ABDUL RAZIQUE
(Expert) 06 December 2013
Customary Divorce:
Contrary to the general notion regarding the indissolubility of Hindu marriages, a large section of Hindus among the lower castes have traditionally practiced divorce. These customary forms of divorce were recognized, both socially and judicially. The usual customary forms are:
(1) By mutual consent;
(2) Unilaterally—at the pleasure of the husband or by the abandonment of the wife;
(3) By deed of divorce (Char—chitti);
shilpa
(Querist) 18 December 2013
In case of mutual consent wife can get a alimony amount at the time of signing of petition or at the time of decree of divorce?
