The D phrase: Baby custody and different parts of divorce proceedings, a lawyer writes
In this three-part series, attorney Chethana V writes about the legal process of a divorce.
Note – This article is not a substitute for legal advice or the consultation of an attorney who may better advise you on the facts and circumstances of your case, it is merely a tool to help the reader understand the Indian Marriage and Personnel Legal Framework.
2011 was a very eventful year for many reasons, including the event of True Marriage and the relentless priest. During the filming of Force, Genelia and John Abraham were supposed to get married in one scene. They hired a real priest who said real mantras and was convinced that the marriage between the actors was real. He reportedly stood in front of the producer’s house and asked for an opportunity to explain to the actors that they were, in fact, husband and wife.
While I admire his devotion to the institution, it must be noted that Genelia and John could not marry at any time because of his mantras because they were Christians and these were rituals under the Hindu Marriage Act. As we discussed in the first part of this series, personal laws in India are tied to one’s religion and the rituals that were going on at the time of marriage.
At this point, an article on divorce and marriage is incomplete without mentioning the Star Vijay Serial trailer that is making the rounds. I want to make it clear – you are not legally married if a man with severely constipated facial expressions ties a yellow thread around your neck in revenge for preventing him from separating a couple who appear to have gotten married ( self- respect marriage as discussed in part one) “. The series trailer raises many concerns and questions about toxic masculinity and intolerance, but this woman can be sure that she is not this man’s wife.
Even if it is considered a marriage (it is not), it can be challenged at the woman’s instance and the “marriage” can be dissolved in court.
The breeze will come and touch me – soon .. #ThendralVanthuEnnaiThodum #VijayTelevision #VijayTv pic.twitter.com/K9UpHTpWwu
– Vijay Television (jayvijaytelevision) July 25, 2021
In Part 2, we discussed the different legal remedies available for marital disputes. In this part, we’ll look at the other elements involved in this process.
Mediation and advice
In all marital disputes, it is the task of the court to examine whether these can be settled between the parties. The court can order that the parties first go to mediation or counseling if a contested case has been initiated. This is an opportunity for the parties to share their complaints with a third party mediator / advisor and consider the possibility of a reunion or agreement.
According to personal law, a woman is entitled to advance maintenance payments for herself and for her husband’s children. As the name suggests, temporary alimony is the amount that can be claimed as alimony when the proceedings are pending in court. Depending on the economic origin of the wife and the husband’s ability to work, the court sets an amount that must be paid at regular intervals until the proceedings are concluded. The wife can also submit an application for maintenance in accordance with Section 125 of the Code of Criminal Procedure, whereby this special legal provision is religiously neutral.
According to a recent Supreme Court ruling, both parties to maintenance proceedings are required to file a list of assets and liabilities and disclose relevant information about their financial position to the court. This will also be taken into account by the court when determining the amount of compensation to be awarded to the party requesting it.
If the circumstances change after the court has issued a maintenance decision, for example – increase in school fees, increase in medical expenses, loss of a job – the person who wishes to change the amount of maintenance can go to court again and try to reimburse the granted maintenance amount to revise.
Custody and guardianship
When the parties have children, the issue of custody and guardianship comes into play and a distinction is made between the two. You have custody of the child when the child is physically with you. Guardianship is the legal recognition of a person who can make decisions for the child and is responsible for the child. The father and mother are guardians of the child. However, if one party wants sole custody and guardianship, they can either discuss with the other party and agree on a common approach, or they can unilaterally convene the court.
This also includes the decision about visiting and vacation arrangements. If one person has sole custody of the child, the visiting issue can be discussed for the other person. With the advent of COVID-19 and decreasing mobility, video calls with the children are also being used instead of the physical visit and the concept of communication rights (staying in contact with the child through calls and video conferencing) from parents who do not have primary custody of the child, occur.
Return of items
A person leaving their marital home usually does not plan to do so, and as a result, many of their belongings are still in that house. If the objects are not returned on request in a contested procedure, an application for the return of the objects can be submitted to the court, which the court orders after hearing the other party. This can be agreed between the parties in an application for consent and included in the terms of the divorce.
When the other person is ready to return the items, it is a good idea to make a list of the items and get a signature from the person who receives them to confirm receipt. The item can be anything that the person expects to be returned to them – jewelry, clothing, cars, books, belongings, and utensils – there is no hard and fast definition for it.
Domestic violence and the family courts
Domestic violence can force a person to leave a marriage. While a woman may not want to face the rigors of filing a domestic violence lawsuit or criminal case against her spouse, she may want to file for separation or divorce.
The Law to Protect Women from Domestic Violence was enacted in 2005. It applies not only to married women, but to any woman who lives with a man in the nature of marriage. This means that the law can also be applied to heterosexual residential couples.
The definition of domestic violence under this law is not limited to just physical violence, but also addresses emotional, verbal, and economic cruelty. Economic cruelty is a relatively new concept and includes cases where the woman does not receive enough money to support herself, the children, and the household. The law also deals with:
Guard orders – preventing the partner from entering the woman’s home or workplace, preventing the partner from entering the child’s school, preventing the partner from cruel acts, preventing the partner from being with the woman by written or verbal To communicate communication, to prevent the partner from operating the common safe deposit box and from selling his common assets
Housing Arrangements – To allow the woman to live in the house if she has been forced to leave the house, prevent the partner from selling any part of the house and prevent the partner from entering the part of the house in where the woman lives
The law also regulates monetary orders (alimony, loss of earnings and medical expenses), custody orders (in relation to underage children) and compensation (for the trauma caused).
Family courts are empowered to issue orders with regard to protection, residence, financial relief, custody and compensation as well as other alleviations requested under personal law.
Transfer of cases
If two people split up and went to different cities or states, chances are they could file a lawsuit against the other from the city they are in. A request for transfer of cases within Tamil Nadu can be filed with the Madras High Court. An application to transfer cases from one state to another can only be submitted to the Supreme Court.
Chethana is a lawyer in Chennai. She handles cases before the Family Courts, the Courts and the Madras High Court. Your email ID is [email protected].
Read part one: The D Word: What You Need To Know About Divorce Writes A Lawyer
Read part two: The D word: mutual consent and other legal remedies, writes a lawyer
Comments are closed.