Minansu Bhadra,Advocate

Wednesday, 6 May 2015

Section 10 of the Hindu Marriage Act, 1955, provides for Judicial Separation. According to Sec 10 of the Act. Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13, and in the case of a wife also on any of the grounds might have been presented.
The effect of the decree is that certain mutual rights and obligations arising from marriage are put under suspension. The main purpose behind filing the petition for Judicial separation is to make interim financial arrangements for two of them, such as deciding which one will possess which property, and which one of them shall pay the other temporary financial support etc.
Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statement made in such petition, rescind the decree if it considers it just and reasonable to do so.
Judicial or legal separation permits the parties to a marriage to live apart. It is a relief short of actual dissolution of marriage. So long as the decree is in force the parties to the marriage are permitted to live apart and it shall no longer be obligatory for either party to cohabit with the other. The object of this provision seems to be to afford an opportunity to the parties to reconcile their difference and to live together. If the parties do not cohabit for a period of one year or upwards after a decree for judicial separation was passed, either party to the marriage can claim dissolution of the marriage.

Monday, 27 May 2013

Divorce by Mutual Consent is the fastest way or procedure for getting divorce in India. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce under mutual consent, it is necessary for the husband and wife to have lived separately for at least a year. Divorce by mutual consent is fastest because parties can get divorce in six months only and can be shortened if the parties are living separately since long time spam. In this case,  spouses can mutually agree to a settlement and file for a “mutual divorce” under under following Acts which may vary according to law applicable to parties:-

Sec.13B The Hindu Marriage Act.,Sec 28 The Special Marriage Act,Sec10 A The Indian Divorce Act

 Seeking a divorce by mutual consent is same under each Act, which is initiated by filing a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners present in Court, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required to reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, before filling petition are custody of child, alimony to wife, return of dowry items.

Custody Of Child

In the matrimonial issue, the most important and complex issue is that of Child Custody. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.
Though all matrimonial laws provides a provision regarding custody of child, but the real power lies under Guardian and Wards Act-1890. Guardian and wards card are empowered to determine the issue of child custody.

Generally  Guardian and Wards Court have power to grant:

  • Permanent Custody ,Interim Custody and Visitation Right

Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criteria before awarding final custody in favour of one spouse as against the other is Welfare of the Child.
Important factors, amongst other, which are considered by the Court in awarding custody are:
Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court
Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court.

 The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.
In nut shell, I can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.