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Poonam (TL)     02 March 2013

Dv maintenance under special marriage act?

I have been married for more than 7 years now. Have a 5 year old daughter. It was a love marriage and I am from J&K. he is from Maharashtra.

Things were fine till 2009.

My husband was neglecting us and was rude and violent with us whole of 2011. In 2012- I found he was having an affair with his colleague 17 years younger.  

First he promised he will take care of us and asked to be forgiven. But he took my love for him as my weakness and continued to cheat on me and became more adamant and violent.

He caused a lot of mental and emotional trauma to me and my family members. I did everything possible to save the marriage.

He moved out of the house 8 months back and is not paying me money regularly. He wants to get married to that girl or may be move out of the country with her.

He does not call my daughter and keeps forcing me for mutual divorce.

He took all the investments and car with him. I am staying in the rental property we used to live in.

 He is threatening me to sign the papers or I will not get money. I am working but earning 15% of what he earns.

 What are my rights?

Will our marriage come under special marriage act?

Should I file for maintenance under DV or sue him for cruelty?   

How much can i expect? I have heard sometimes court ask to petty amounts like 3,000/month

Should I ask for restitution of conjugal rights?

I am going through depression and not able to take any legal action - If he files for divorce on some false ground – will the courts think I am doing the above only to get back to him?

I am very confused please help.

Thanks  



Learning

 15 Replies

Poonam (TL)     02 March 2013

PS: The marriage took place in J&K. Will it be necessary to do the file under special marriage act? Or can I proceed with Hindu Marriage act guidelines. Is the special marriage act more helpful/stringent?

adv. rajeev ( rajoo ) (practicing advocate)     02 March 2013

It is lover marriage>  Whether you both belongs to Hindu or some other religion?   If your husband files divorce you can seek interrium maintenance also and you can file a petition claiming maintennace to your and your daughter.

Rahul Kapoor (Legal Enthusiast)     02 March 2013

hello,

under which act rules you married ?

 

Poonam (TL)     02 March 2013

we are both hindus and married under the hindu marriage. I only wanted to know since i am from J&K would it make things different?

i think he has filed for divorce under cruelty. we had a very nice love marriage. he is doing all of this so that he can live his own life with that girl and does not want to pay anything to me or our daughter.


(Guest)

I takes two to tango !

Hareshkumar Shrimali (Branch Executive)     02 March 2013

Totally Agree with Rahul Kapoor, under which act / rules you married ? She even has not mentioned here that both are Hindu or either person is of different religion .It's also not clear that the Marriage is registered or not, if yes, under which Act ? Assuming that both are Hindus & no Registration of Marriage under any Act & without knowing that from whom she was advised " I have heard sometimes court ask to petty amounts like 3,000/month " , a J & K Lawyer or some litigants. It appears that you are hiding many facts.

Is it Hindu Marriage Act.....?
Special marriage Act....? Applicable
or is there any other act which governs the marriage ceremony's of Jamu & Kashmir people...........?       
Hindu Marriage Act 1980
Hindu Marriage (validation of Proceedings) Act 1963 ?
Special Marriage Act 1954 ?

THE MARRIAGE LAWS (AMENDMENT) ACT, 2001

THE MARRIAGES VALIDATION ACT, 1892

J. & K. Hindu Marriage Act, 1980 ?

Is DV Act, 2005 applicable at J & K ? Is Special Marriage Act, 1954 applicable in J & K ? Applicability of the Special Marriage Act, 1954

 

  1. Any person, irrespective of religion.[4]
  2. Hindus, Buddhists, Jains, Sikhs can also perform marriage under the Special Marriage Act, 1954.[4]
  3. The Muslim, Christian, Parsi, or Jewish religions can also perform marriage under the Special Marriage Act, 1954.[4]
  4. Inter-caste marriages are performed under this Act.[4]
  5. This Act is applicable to the entire territory of India (excluding the states of Jammu and Kashmir) and extends to intending spouses who are both Indian nationals living abroad.
  6. Dear Sister, kashmir has not beeen an integral part since 1947-88 as you seem to suggest. the maharaja of kashmir did not sign the document of accession for a very long time till the political situation was in his favour.the millitary occupation by indian forces has been there since the valley was invaded by western tribals. as far as the claim that ms roy has been having the freedom of speech and expression is concerned, she has been threatened by charges of sedition, and i assume you understand the gravity. interestingly mahatma gandhi was once charged by the same "waging war against the state" offence. and about sharing the dias with geelani, well i am sure nehru and chou did the same. i am not a kashmiri, nor a fundamental religious fanatic. i just know my history. thanks.
  7.  

Section 13(1)(A) of the Central Hindu Marriage Act is applicable to the State of J. & K. ? Before proceeding further, it would be of advantage to take note of certain provisions of J. & K. Hindu Marriage Act, 1955, as well as the J. & K. Hindu Marriage Act of 1980.

Jammu High Court
Man Mohan Kapoor vs Smt. Kailash Kumari on 24 November, 1983
Equivalent citations: AIR 1984 J K 59
Author: A Anand
Bench: A Anand

Think over it , because for your any Case, there will be much more Comlexity in Laws.. In present case, no Law machinery is initiated by either side, hence why you are hesitating under Depression, go for  in Jammu and Kashmir, Jammu and Kashmir Hindu Marriage Act, 1980 empowers the Government to make rules to provide that the parties (Hindus) shall have their particulars relating to marriages entered in such a manner as may be prescribed for facilitating proof of such marriages. The Convention on the Elimination of All Forms of Discrimination Against Women (in short 'CEDAW') was adopted in 1979 by the United Nations General Assembly. J & K Govt. latest amendments regarding Jammu & Kashmir Marriage Act .

Coming after 25 years, a High Court ruling grants Kashmiri women marrying outsiders the rights to work, education, inheritance, even adoption

The Jammu and Kashmir High Court has pronounced a historic verdict in favour of the women of the state. The court ruled -- after 25 years of argument -- that Kashmiri women marrying outsiders did not stand to lose her right to work, education, inheritance and even adoption.

A full bench of the court, hearing a bunch of petitions filed over the years, held by a majority decision that a woman by marriage to an outsider `will not lose her state subject rights'.

The impugned law governing permanent resident status in the state provided that a female ceased to be a subject of the state if she married a non-permanent resident of Jammu and Kashmir. She would then lose her right to get or continue in a government job, own land and property, pursue higher education, contest or vote in municipal and state elections. However, wives of J&K men automatically became state subjects.

In court, the counsel for women petitioners argued that the existing laws violated a woman's right to equality and sought to deny natural consequences of birth to a female in retaining her permanent residentship of the state in case she marries an outsider. At present, women in the state get their Permanent Residentship Certificate (PRC) with a marking `valid only till marriage'.

The legal battle started in 1978 when Amarjeet Kaur of Chogal village in Kupwara district sought to acquire her share of property left behind to three siblings by their father. Since Amarjeet and her sister were married in Punjab to non-residents, their brother Harjeet Singh claimed that his sisters were no longer residents and therefore could not get possession of the property.

Amarjeet won in the trial court, from where the case came to the High Court in appeal. K N Bhat, Amarjeet's advocate, called the ruling an “historic verdict in favour of women's rights”.

After Amarjeet other affected women joined in, including Rubina Nassarullah, granddaughter of Kashmir's ex-chief minister Bakshi Ghulam Mohammad (and daughter-in-law of former Punjab governor Surinder Nath). She challenged the law after being barred from pursuing her post-graduation in medicine when she married an outsider.

Women's groups across the country that empathised with the cause were prevented from taking up the issue as it was sub-judice.

Source: The Indian Express, October 8, 2002. MUMBAI: In a significant judgment, the Bombay high court on Monday held that Hindu women whose marriage is solemnised in Jammu & Kashmir are free to file for divorce before a family court in any other state under the provisions of the Hindu Marriage Act.

The verdict delivered by a bench of Justices Ajay Khanwilkar and Nitin Jamdar comes as a relief to a 42-year-old Hindu woman Sarita Lalchand (name changed) who was married in 1993 to a Hindu man in Jammu under the Jammu & Kashmir Hindu Marriage Act, 1980. Her husband Sanjay (name changed) opposed her divorce petition which was filed on grounds of cruelty under the Hindu Marriage Act, which is a Central law applicable throughout India, except J&K .

Poonam (TL)     03 March 2013

Mr. Hareshkumar,

I have clearly mentioned in my additional post (5 from top) that we both are Hindus and married under the Hindu marriage act. There is nothing to hide. Why would I come to this forum otherwise? Please don’t jump to conclusions which don’t help anyone.

I was wrong about my understanding of the special marriage – I thought all marriages that happen in J&K come under special marriage act.

I read few of previous judgments and noticed most of the times meager amounts have been assigned for maintenance. I could be wrong that is why I am asking for help. Not every day women have to fight with their own so called life partners for payments of expenses.

Looks like you have a lot against lawyers and people in general from J&K.

Thanks for your reply or should I say copy paste!

Tajobsindia (Senior Partner )     03 March 2013

There are many ways to review and then answer your brief, choose which you can sustain as once matter reaches Courts one cannot expect fastest relief behind backdrop of 7 years old love marriage is my view;

1. If you are 'earning an income' then under civil maintenance laws you may not get any relief under civil maintenance. However your daughter if minor will get co-extensive maintenance as relief if one of the (HMA or HAMA) civil maintenance laws recourse sought by your side. Civil maintenance laws are time consuming but binding over criminal maintenance tried Courts.

2. OR you may take shelter under S. 125 CrPC wherein you may show his ‘neglect’ r/w ability to earn a ‘income’ to claim maintenance for your daughter and later convert proved neglect into case of desertion (divorce) under civil family laws of the land.

3. You may on the other hand simply opt filing RCR and if you win it then you may seek relief by way of attachment of his income / property (assets) if any and in due course of time (i.e. final Order limitation period) you may opt for divorce as future relief along with alimony as deserted husband is bound to meetalimony to his wife is law of the land. With filing RCR you may claim for your daughter maintenance and for your this civil court case you may claim litigation expenses.

4. You may also opt for Mutual Divorce by way of proper paper work with one time lump sum alimony for yourself and maintenance expenses till major / marriage / job for your daughter which is fastest way to check out from alleged to be adulterous relationship of his and to restart your life afresh.  Here we say 'divorce' as in word is no more a 'dirty word'.

Regarding pittance as in what you heard (read) being awarded by various Courts as maintenance, here all that I can educate you is that such maintenance awards are as per plead facts before Court(s) and more or less subjective (Lawyer's) pleadings based r/w lady luck of either litigant.

Also DV Act applicability in reference to allegations that he has a local g/f and he has intention to marry her r/w may leave for overseas with her is all too much detective (guess) efforts which given to understand you two's geographic distances is not only time consuming / money draining exercise but also needs silver quality proofs to establish such reliefs.

For the same flying for S. 498a / S. 406 IPC etc. is also not advised option currently and one may graduate to such harsher IPC section as and when one feels having evidences to claim such reliefs.

Your future course of action falls purely under HMA, 1955 and SMA is not applicable ir-respective your marriage of 7 years was / is Registered or not and/or if and but you live in J & K or at Goa (partialy Portuguese Family Laws were repealed and HMA upheld recently here).

From this reply see where you might like to stand in days to come; in nutshell your daughter has much larger rights over you to claim maintenance till she attains her major age as per law or till she gets herself married off / lands a job (earning) whichever is earlier over you for a simple fact reflecting from your brief is that, you are earning a income whether it is 15% less over his are all in books of long drawn lengthy interpretations by way of appeals etal which we may discuss later once you make up your mind as to what legal action you may prefer to close one chapter and start fresh over almost under a decade old love marriage with alleged ingredients of ‘cheating by one spouse r/w neglected matrimony further r/w neglect of minor by one and same spouse’ as proposed volley of allegations by way of your brief before us.  


Choose (as in digest) comma, phrase, words, noun-adjective and/or para which suits your best interests from my above short reply as an when you are calmed down from your present state of mind.

If it helps,

ATB


(Guest)

@Querist,

 

Query 1.What are my rights?

 

Reply- Under Civil remedy you are entitled to maintenence.

 

Query 2-Will our marriage come under special marriage act?

 

Reply- It all depends under which act or what procedure/custom were followed at the time of your marriage.

 

Query 3 . Should I file for maintenance under DV or sue him for cruelty?

 

Reply- You can go for both as you wish and your intent gets fulfilled.

 

Query 4. How much can i expect? I have heard sometimes court ask to petty amounts like 3,000/month.

 

Reply-It all depends upon the circumstances and fact of the presented case.

 

Query 5. Should I ask for restitution of conjugal rights?

 

Reply- Yes you can.But you shouldn't.A long process,difficult,and chances may not be in your favor.

 

'The Senior' has already advised you.There are certain points to which I agree to disagree.But He covered all the aspects coming under the gamut of your question.Act accordingly as your conscience and situation demands.


Note-This reply should be taken as per the declaration given in my profile page.

 

Thanks,

Regards,

Tajobsindia (Senior Partner )     03 March 2013

@ Mr. Sumitra,

- hey folks keep guessing is not right way to share / continue / learn in legal public forums for authors own understanding leave aside me for this just moment of legal consultancy.
- suggested to point out those paras and state here why you agree and disagree them as you say you agree to disagree some pointers from my reply abovein. 

Follow-up: I didnot understand your one liners as I have issues with one liners which normally do not make much inroads. However forget it.


(Guest)

@The senior,

 

First of all, I want to say to you, I am unable to find  words to show my happiness after seeing you again in this forum(I am sure you must have checked your PM and G.......Inbox by now).

 

I agreed to disagree on the points 2 and 3.Please see my previous reply where i categorically tried to reply.

 

'Cruelty should not be tolerated in any way'.

 

Note-This reply should be taken as per the declaration given in my profile page.

 

Thanks,

Regards,

Hareshkumar Shrimali (Branch Executive)     04 March 2013

My Dear Sir,     

With All Due Respect, I'm not against any Lawyer nor copy-pasted my Reply.  Why should I ?

Just Read between Lines of Query's Lines " I have been married for more than 7 years now. Have a 5 year old daughter. It was a love marriage and I am from J&K. he is from Maharashtra. " & my Reply. I hv specifically replied assuming some pre-meditated assumptions. She nowhere wrote that her marriage took place at which Place, it's a Love Marriage.

Ok. I hv no grudge on any Lawyers. I'm always praise them b'coz they do answer harrassed/ knowledge hungtry  persons. That's all. Those Members out of 2,18,308 , who are not taking interest in answering anybody's query,  I hv nothing to say. Take it always practically, otherwise, lawyers would stop giving Answers to any query. I'm B.Sc., FICWA, CAIIB, LLB in 1988. There was no DV Act at that time. No more Maintainance cases like to-day in 1988. No Family Courts. If you still think, I'm wrong, it's your own belief, I hv nothing to do with it. 

Please bear with me.

Hareshkumar Shrimali

Hareshkumar Shrimali (Branch Executive)     04 March 2013

 

 

P.S. :  Even I do have legal problems, I also ask to this Forum.

My Dear Sir,

With All Due Respect, I'm not against any Lawyer nor copy-pasted my Reply. Why should I ?

Just Read between Lines of Query's Lines " I have been married for more than 7 years now. Have a 5 year old daughter. It was a love marriage and I am from J&K. he is from Maharashtra. " & my Reply. I hv specifically replied assuming some pre-meditated assumptions. She nowhere wrote that her marriage took place at which Place, it's a Love Marriage.

Ok. I hv no grudge on any Lawyers. I'm always praise them b'coz they do answer harrassed/ knowledge hungtry persons. That's all. Those Members out of 2,18,308 , who are not taking interest in answering anybody's query, I hv nothing to say. Take it always practically, otherwise, lawyers would stop giving Answers to any query. I'm B.Sc., FICWA, CAIIB, LLB in 1988. There was no DV Act at that time. No more Maintainance cases like to-day in 1988. No Family Courts. If you still think, I'm wrong, it's your own belief, I hv nothing to do with it.

Please bear with me.

Hareshkumar Shrimali

Poonam (TL)     06 March 2013

@Tajobsindia,

Thank you for your detailed response. This really helps in clearing a lot of my doubts.

I think I am not sure which is more appropriate between DV and RCR?

He was violent at home and neglected us. He deserted us. So I am not sure if I should file DV or RCR. He will surely not come back home after doing so much to us and neither I will be able to truly take him back since I am not God.

We had a very nice living standard before. Without listing everything I would simply like to say that our living standard has come down drastically. Hence I want to get good maintenance or alimony. And hope that it works out for all parties involved.

The devil in me does want to get back to him – but two wrongs don’t make it right.  

Having said that, even though I am working NOW – being a single parent there would be challenges and my job will always be prioritized below my daughter.

So if I may put my query once more in simple words - What is the easiest way to bail out of this situation with enough financial security for the two of us.

Regards,    


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