Mutual Consent Divorce was brought by the Indian Parliament vide Amendment in the year 1976 in the Hindu Marriage Act. It has brought relief. We recommend that mutual divorce is a better option compared to the contested divorce. It saves time, energy, money, and avoidable toxicity.
Parties desirous of Mutual Divorce are always perplexed as to how to initiate the process, the role of court, terms, and conditions of mutual consent divorce, issues of maintenance and child custody, duration, the place of filing, and other allied questions. All your questions are answered in coming paras.
Spouses should talk to each other about the future course. If both spouses reach the conclusion that marriage is not workable they should ease out the tension surrounding them. They should accept that their marriage has broken down. Forget the fear of society. Nobody knows the situation better than husband and wife themselves.
Accept that there can be agreement even in disagreement.
If there are child(ren) involved, the spouses should decide amongst themselves about Custody of children and their visitation rights. They can discuss interim custody during summer and winter vacations and other holidays. Both parents are equally competent to take custody of the children. It is the understanding and agreement between parties that prevail. Parties can have an understanding of joint custody or shared parenting in the mutual consent divorce process. This can save parents and children from avoidable suffering.
The next important aspect is a financial settlement. There are various aspects of financial settlement which includes alimony, maintenance, house, education expenses, higher education expenses, a marriage of children, istridhan, joint investments, joint accounts and many other. As mutual consent divorce lawyers, we provide a platform for parties to discuss these issues in a calm atmosphere and reach their own solutions. We as mutual consent divorce lawyers provide different options using our vast experience in the field to bring settlement. Sometimes, emotions between spouses are running so high that logic fails.
Once the petition for divorce by mutual consent is filed, the presence of parties is required in the Court for the recording of the statement. In the event one of the parties is unable to come, such a party can appear through power of attorney. Such power of attorney preferably should be a family member of the spouse. Once the statement is recorded, it is commonly called First Motion has been passed
After passing of first motion, parties are called upon to wait for six months period before moving the Petition for the second motion. This period is extendable up to eighteen months. This six months period is generally called a cooling-off period. Six months period are given to parties to think about their relationship again. It is given for reconciliation. Statement of parties is recorded by the Court. Once the statement of a minimum of six months period is recorded, the Second motion is passed by the Court. Thereafter decree of divorce is given. Marriage gets dissolved.
This six months period can be waived by the concerned family Court upon filing an Application for a waiver of six months. Family Court has the discretion to waive off the period. Thus, a time period of six months can be waived off and may be reduced to as few as 15 days or a month or so.
During the period of six months i.e. before moving the second motion, both parties have the liberty to withdraw their consent for divorce.
‘NRI Divorce Lawyers’ are the need of time. 18 million Indians are living abroad. This is the highest in the world. Divorce itself is complicated. Complication compounds and aggravate when it involves the Indian Law of Divorce and Foreign Divorce and issues arising out of the same.
Answer to aforesaid questions differs from situation to situation and case to case. basis. However, as per Indian Law as interpreted by Indian Court including the Supreme Court of India on NRI divorce issues, the settled position can be stated as under :
Mutual consent divorce amongst NRI granted by foreign Court will be considered as legal, valid and binding in India. Section 13 & Section 14 of the Code of Civil procedure recognizes the validity of a foreign judgment. Section 13 of CPC says that a foreign court is valid and conclusive unless it falls under any of the following six categories:-
Mutual Consent Divorce does not fall under any of the exceptions mentioned above. It is done with the consent of the parties. Consent gives jurisdiction to the Foreign Court. Hindu Marriage Act and other similar laws have provisions for mutual divorce. Therefore, it does not violate the law. The irreconcilable differences is a valid ground in India in mutual divorce. It is in conformity with the Indian law of divorce. It does not breach. Hon’ble Supreme Court of India has affirmed this issue in the classic case on the subject in Y. Narsimha case.
It is not mandatory and compulsory to obtain a declaration or ratification of mutual divorce by the Indian Court. However, it is desirable and advisable to seek a declaration from the Court in India to avoid future conflicts and explanations.
An exparte decree of divorce granted in NRI divorce matter is not valid, legal, and binding in India. Exparte NRI divorce implies that one spouse had initiated a petition for divorce in a foreign Court. And the other party could not contest the same. Such foreign divorce is not applicable in India as it falls within the exceptions of section 13 CPC as mentioned above.
Contested Divorce is the the most intriguing aspect of NRI Divorce. Being NRI Divorce Lawyers, we have been contesting such cases in different jurisdictions across the Court. There is no definite and conclusive rule in this regard considering different scenarios and circumstances. However, we can understand the same at a broad level.
In this case, divorce is likely to get recognition in India. It is held that after contesting a divorce case in a foreign Courts jurisdiction and submitting to the jurisdiction, the losing party can not initiate a fresh round of litigation in India.
In this case, upon receipt of the summons, it will be appropriate for the party involved to immediately file an objection to the jurisdiction of the Foreign Court. It is equally advisable to come back to India if the summons is served in the foreign Court.
Besides the above, there are several situations and circumstances that call for NRI Divorce Lawyers’ expertise to deal and advise according to the individual circumstances of the case.
As of date, we have extensively covered various foreign jurisdictions. We worked closely with the aspect of foreign Divorce. We are fully in sync with the laws of divorce of the United States of America(USA), Germany, Australia, Canada, UAE, Singapore, United Kingdom( UK), and all major countries.
We also have achieved a unique distinction of fighting in the jurisdiction of the foreign Country. We objected to their jurisdiction. Foreign Court has recognized it does not have jurisdiction. One of the matters is widely reported in Australian Law Journals.
Our hands-on approach always helps us aligned best with our clients to foster a relationship that goes beyond the usual Advocate and client relationship. We understand the sensitivity and compassion involved in the cases.
Domestic Violence law in India is governed by an Act of the Parliament i.e.Protection of Women from Domestic Violence Act, 2005. It provides variety of rights to women victim of Domestic Violence.
Such rights include claim of monetary relief, rights to residence, compensation for domestic violence, protection order, and child custody amongst other reliefs.
Domestic violence Act has come into force with objective of expeditious disposal of the claim of women who are victim of domestic violence. Domestic violence complaint is filed in the Court of Magistrate who is empowered to pass exparte orders. Domestic violence has come in to force with objective of providing economic justice and independence to women victim of domestic violence.
Domestic violence law specifically provides the right to residence. Right to residence includes in living in the shared house hold irrespective of fact whether wife has right, title or interest over the property/residence. This specific provision is inserted in Domestic Violence law to arrest the menace of abandoning the woman and children, if any, without roof and shelter in case of matrimonial disputes. DV Act also provides for alternate accommodation. Hence, law cast a mandate on the husband to provide residence to the wife. Such residence can be shared house hold where husband and wife lived together and made such house as their matrimonial house. Alternatively, law mandates husband to provide alternate residence comparable to the one previously enjoyed by the wife while living together.
Case under domestic violence law is initiated by filing a complaint detailing all events of domestic violence before the Court of magistrate. Such complaint is generally accompanied by interim application. Magistrate trying the complaint is empowered to execute summons of the case through protection officer or by the concerned police station. In dire case requiring urgent relief, court has power to grant exparte order(order in the absence of the other party). For example, wife is abandoned by the husband and she is in immediate danger of loss of roof over her head. She can approach to the Court for directions that she may not be evicted from the house rather she should be allowed to stay in the shared house hold or matrimonial home. Court under such grave circumstances is competent to pass exparte order restraining the husband or any other family member from dispossessing her from the shared house hold or matrimonial home.
Another important feature of Domestic violence law is that relief can be claimed not only against husband but also against in laws.
Earlier there were views the domestic violence complaint cannot be filed against women. Rationale behind such views was that Domestic violence is for the protection of women.
However, this controversy is set to rest by a decision of Hon’ble High Court of Delhi. Hence, complaint for domestic violence is maintainable against female or women.
Scope of law is further widened wherein it is clarified that not only wife but any other female living in domestic relationship can seek remedy. Thus, sister or mother can claim relief against son or father and/or brother for the relief.
Domestic violence law for the first time recognizes existence of legal rights to female who are not married to claim monetary relief, residence, compensation etc from her partner. In other words, women living as “live in relationship” has been given benefits, protection, right and claim under domestic violence law.
Law relating to Domestic violence has developed considerably. Yet, law is still in formative years with different judgments and case laws are evolving. We have domestic violence lawyers. Such domestic violence lawyer keep tab and updated with changing law for the successful prosecution or defense of the domestic violence complaint. Good domestic violence lawyer ensure maximum benefits to victim of domestic violence. In defense, good domestic violence lawyer ensure best strategy to counter the claim and get justice in cases of motivated domestic violence complaint.
Transfer Petition in Supreme Court can be filed when the case is sought to be transferred from the Jurisdiction of one High Court to another jurisdiction of another High Court. For example, the Husband had instituted a divorce case in Pune while the wife is living in Delhi. A wife can approach the Hon’ble Supreme Court of India seeking the transfer of such a divorce case from Pune to Delhi.
Similarly, a transfer Petition can be filed in the High Court. High Court will have jurisdiction to transfer the case from one District to another District over which it has jurisdiction. For example, the Husband had instituted a divorce case in Ghaziabad while the wife is living in Varanasi. A wife can approach the Hon’ble High Court of Allahabad seeking the transfer of such a divorce case from Ghaziabad to Varanasi.
Generally, it is the Respondent who files Transfer Petition in the Supreme Court of India. In a divorce case, if the wife had instituted a divorce case then the husband will be the Respondent. Thus, the husband can file the transfer petition in the Supreme Court.
Two types of Transfer Petitions that are filed in the Supreme Court:-
It is another important remedy provided by law to the spouses. In cases, where one party leave the company and society of the other spouse, then a case for restitution of conjugal rights can be filed in the Court. The Court directs the defaulting spouse to join the company of the other spouse unless there is a strong reason justifying such withdrawal. This remedy is often used strategically in fighting matrimonial cases.
Divorce Petition, contested divorce cases Half of the battle is won on the basis of the sound drafting of the Divorce Petition. We use all of our divorce expertise in drafting of the Petition and lay a strong foundation for the entire contested divorce case.
Divorce is a complex issue and hard core emotions are involved. Divorce is not a dispute for profit but personal battles fought in the Court. Effective drafting involves lot of care and conscious efforts need to be put in balancing the legal and personal interest of clients.
Our experience leads to one conclusion that each case is different and so are the issues involved in the divorce case. While drafting divorce Petition, it is all very important to have all issues arising out of real facts so that it should give one never ending and clinching feeling that the divorce pleading is based on true facts and is not a divorce petition template or one general standard form of Divorce Petition.
We are conscious of the laws regarding divorce and constant and perennial development related to divorce laws in India and thus drafting conforms to the legal requirements of the case.
You can rely on our experience in getting divorce Petition drafted which echoes your true emotions!!!!
Annulment of marriage is moved on certain grounds specified in various matrimonial laws. Section 12 of the Hindu Marriage Act lays down the grounds on which petition for annulment can be filed.
There are four broad grounds for annulment of marriage in India. They are explained below.
This ground of annulment of marriage is available to either of the spouse to present the petition. Husband or wife can initiate the petition for annulment against the other. Two conditions are required to be met for the purpose. They are :-
Section 5 (ii) of the Hindu Marriage Act lays down three situations or grounds on which annulment can be sought. Such ground and conditions are when marriage had taken place when both parties were
In this case, party seeking annulment has to provide either of the following:
Law prescribes time limitation in proceeding with the annulment of marriage on the ground of fraud. Such annulment petition has to be filed with in one year of the discovery of the fraud committed by the Respondent.
Illustration: A represents her age to be 24 years to B. B proceed for the marriage. After about six months of marriage, B came to know that the real age of the A is 30 years and not 24 years. Now, B has to file the petition for annulment of marriage within one year of such disclosure.
Thereupon, family court will decide the issue wether there was such misrepresentation. The test is had B been aware of actual age of the A at the time of marriage, would he had given the consent for marriage. This is material fact concerning A.
Once a petitioner is successful in proving its case, marriage is declared null and void. Resultantly, the court considers that the marriage has not taken place at all and the tag of the ‘divorcee‘ is not attached. Annulment of marriage is very important in the scheme of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized on the strength of fraud or where the marriage is solemnized despite the fact that the responding spouse was already married.
We at divorce lawyers having years of service knows what it takes to bring home the case of annulment of marriage. A good divorce lawyers know how necessary facts need to be pleaded and evidence marshalled to make home the grounds for the annulment of marriage. Divorce Lawyers(DL) experince in successfully managing the same is unmatchable.We at divorce lawyers having years of service knows what it takes to bring home the case of annulment of marriage. A good divorce lawyers know how necessary facts need to be pleaded and evidence marshalled to make home the grounds for the annulment of marriage. Divorce Lawyers(DL) experince in successfully managing the same is unmatchable.
Contested Divorce requires experience and lateral approach. Contested Divorce implies party desirous of divorce approach the concerned Family Court for the dissolution of marriage. Spouse seeking divorce has to take one of the grounds provided under the law of for contested divorce.
There are different laws dealing with contested divorce for different section of the Society. Hindu Marriage Act,1955 provides ground for divorce for Hindus which includes Sikh, Jain and Budh religion. Indian Divorce Act,1869, provides grounds for divorce for Christian. Special Marriage Act provides grounds for divorce for people married under civil law and whose marriages are registered under Special Marriage Act,1954.
Beside above, there are couples of additional grounds for contested divorce available only to female.
Every case has its own unique situation and circumstances. Every individual is different from the other. So are there experiences. In our journey of now close to two decades, we have seen, met and dealt with thousands of contested divorce cases. We have followed and improved our ability to gel and aligned with view point of spouse seeking or defending contested divorce. This approach helps us to present the case as you suffered and faced during your matrimony. We being aware and abreast of changing nuances of law and the Court rooms, present the case accordingly. As lawyers, we adopt this approach but never abandon duty to engage in the objective manner considering your ultimate interest at the core of the approach. We know the importance. Lives are stake. We take up the responsibility with commitment and sincerity. We try to do complete justice in the journey.
We found that bulk of contested divorce cases are filed on the ground of CRUELTY, DESERTION & ADULTERY.
Lets briefly understand, it basic meaning in the context of a contested divorce case
Contested divorce requires expert divorce lawyers either in prosecuting or defending divorce case. Such expert divorce lawyer guides, strategize and plan the whole action. Effective planning by divorce lawyers increases the probability of success in the trial of the contested divorce.
Contested Divorce is a long process requiring thorough professional work and approach. Good Divorce lawyers take through these challenging and arduous task with expertise and credibility being your counsel through turbulent and emotional time.
Contested Divorce is challenging in terms of time too. We have learnt the process of the early disposal of the case by engaging into different ways and means. We can reduce the normal time without expertise and experience.
Divorce itself is complicated. Complication compounds and aggravate when it involves Indian Law of Divorce and Foreign Divorce and issues arising out of the same.
General questions that arise from such situation can be summed up as “Can a marriage which is solemnized in India dissolved by foreign Court? Can Indian’s living abroad (for eg US) file a case for Divorce in foreign Court say US Court ??? Whether a decree of divorce granted by foreign Court say US Court is valid, legal and binding in India?? Whether an exparte decree of divorce granted by foreign Court, say US court, will be valid and binding in India? Can Indian Court restrain a spouse who has instituted divorce proceedings in foreign country?? Can a person file for divorce in foreign country (say US Court)? Is it necessary that if a divorcee decree is obtained from foreign Court( say US Court) need to validated in India by Indian Courts.
Answer to aforesaid questions differs from situation to situation and case basis. However, as per Indian Law as interpreted by Indian Court including the Supreme Court of India on NRI divorce issues, settled position can be stated as under :
Mutual Consent Divorce amongst NRIs, etc: Generally a mutual consent divorce granted by foreign Court is considered as valid, legal and binding in Indian Courts by virtue of section 13 and 14 of Code of Civil Procedure and also on account of comity of Nations. Such decree of divorce granted by foreign Courts need not to be validated in Indian Courts. However, as a matter of abundant precaution, one can approach to the Indian Court for declaring that divorce is valid and binding.
Contested Divorce in foreign Court can be valid and binding depending upon on the below equation:
Matter is contested by both spouses in foreign Court.
Matter is uncontested in foreign Court and one spouse comes back to India(Generally wife) In the event, matter is contested between parties in foreign Court-say US Court, and after due adjudication and trial, divorce is granted by the foreign Court, same will be valid and binding in India. However, it is necessary to be kept in mind that ground which parties seek to obtain divorce should also be available in India.
In case matter is uncontested, one party comes back to India where marriage had taken place and contest proceedings in India, divorce as granted by foreign Court will not be applicable in India. Party which comes back also has an option of filing a case in India to prevent the other spouse from proceeding in foreign Court. Indian Court has jurisdiction over its citizen. Ex-parte decree of Divorce granted by foreign Court will not be recognized by Indian Court.
Other issues like child custody and maintenance goes by the same principal. In Child Custody cases, special care and circumstances are always taken care of and the principal as explained above may vary. However, universal principal remains constant in guiding the issue of the child custody by any Court in India or foreign Court is the welfare of the child. Welfare of the child depends upon variety of factor.
Our unique, efficient and adept handling of divorce and annulment cases related to NRI over more than a decade has made as a natural choice for representing NRI divorce cases in India.
Our unique NRI legal support services s now include following additional services beside litigation and representation in India. They are as under:
498A |Dowry| Anticipatory Bail are part and parcel of a matrimonial dispute. Let us understand the meaning and implementation part of 498A, Dowry & Anticipatory bail in the same context.
498 A was inserted into criminal law to prevent the social evil of dowry. Its main objective was the eradication of dowry in the Indian social set up. 498A IPC made demand of dowry by the husband or his relative a criminal offence. It covers action of demand of dowry and cruelty met out to the wife. Cruelty is incorporated in a broad and liberal sense. Cruelty can be mental or physical. Law prescribes three years maximum punishment for the offence.
498A Husband or relative of husband of a woman subjecting her to cruelty.
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished ¬ with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation For the purpose of this section, Cruelty means
Law regarding criminalising offence of dowry was made with correct intent and for a larger social objective. In the initial days of the passing of law, First Information Report(FIR) used to be registered instantly upon the complaint of the wife. There used to be imminent threat of arrest of person agains whom allegations are levelled in the Complaint by wife. Such person usually included husband, father in law, mother in law, sister in law. In some case, extended family members are also made accused. Balance in the society was being tried to achieve with the intervention of the State in Family matter. Law has brought chilling effect on the offender.
But, after few years, law had started to be misused as much as it was used. In view of the misuse, many people suffered through Jail. Person accused of the offence had recourse to the Justice system by seeking Anticipatory Bail. Even getting Anticipatory Bail was not easy.
In view of striking balance between use and misuse, it became mandatory that mediation and counselling between the complainant wife and her husband and his family members are done. Objective was to ensure that institution of marriage should not collapse. And general disputes between husband and wife or in laws does not lead to immediate arrest.
Dowry still remains a reality in the Indian Society in many way even today. And thus need to balance remain. Hon’ble Supreme Court of India has laid down guidelines from time to to ensure that the false complaints or misuse of 498A is dealt adequately. Comprehensive guidelines were laid down in the case of Arnesh Kumar versus State of Bihar in the year 2014. Many says that law to curb the menace of dowry has been diluted. Many see it as a welcome step to prevent the misuse. Both point of view has its own merits and demerits.
Complain for Dowry or 498A can be lodged before concerned Crime Against Women Cell( CAW), Women Cell, Mahila Thana as existing against the husband and his family members who have committed offence Upon the receipt of the complaint of harassment, husband and her family members are summoned before the concerned Authority.
Firstly, efforts are made to counsel parties to reconcile their differences. Preservation of marriage is always considered as a priority.
Secondly/ alternatively, upon failure of efforts of reconciliation, parties are counselled for amicable resolution of their dispute by agreeing for mutual consent divorce on terms and conditions as mutually agreeable to both sides.
Consequent upon failure of both possibilities, complaint is referred for the registration of FIR.
Husband and his family may be required to seek anticipatory bail against the offence of 498A/Dowry. Such anticipatory bail application are filed before the Court of Session judge as a normal practice though High Court has concurrent Jurisdiction. Anticipatory bail are decided by the Court as according to the merits of each case.
Investigation Authority ie Police is also mandated to bound down the accused by taking undertaking under section 41 A of the Code of Criminal Procedure (Cr.P.C.). Use of 41 A is necessitated since guidelines are laid down by the Hon’ble Supreme Court in the case of Arnesh Kumar as mentioned above.
Police is required to file chargesheet after investigation of the case. Thereafter, matter goes to the Court(Mahila Court) where the process of cognisance, summoning, charge and trial takes place.
This is an integral part of all matrimonial proceedings. Application for maintenance can be moved by either of the spouses who do not have sufficient means to maintain him/her self. Maintenance can also be classified into two parts:
Such maintenance is provided during the pendency of the case in the court. The underlying idea behind giving such maintenance is that one party should not lose and stand on a weaker footing at the time of contesting the case. Quantum of such maintenance is dependent on a variety of factors but the most important aspect is the status of the parties prior to the filing of the case and the income/salary of the spouse against whom such maintenance is claimed. The court always tries to bring both the party at equal platform and footing.
It is awarded at the time when the whole case is finally decided. It could be periodical or monthly depends upon the facts and circumstances of the case.
There are various laws that govern the aspect of maintenance in India. Such laws are under:
Each case and situation calls for initiating a proceeding under any one of the above law. At times, claim for maintenance is filed under more than one law. Thus, the petitioner can file a claim for maintenance under more than one provision like under section 125 Cr.P.C as well as under section 24 of the Hindu Marriage Act. Practically speaking, the law is settled that the Petitioner would be entitled for higher maintenance if two courts have passed different amounts towards maintenance to the wife. But, the wife will not be entitled to have a maintenance of total sum from two courts. Thus, Court in 125 Crp.C proceedings grants 20,000 rupees while in proceedings under section 24 grants 15000 per month then wife will be entitled to have Rs.20,000 and not 35000 per month. The higher amount is to be paid and not cumulative.
A case for maintenance in the matrimonial matter can be filed by:-
An application under section 24 HMA can be filed only where proceedings for Divorce/Judicial Separation/ Restitution of Conjugal rights are pending.
There are several factors that are considered by the Court while granting maintenance. They are listed below. Notably. this list is only indicative and not exhaustive.
There is no fixed formula to determine maintenance in India. It is difficult to lay. Recently, the Supreme Court said that it should be at least 25 % of the income of the husband. Also, often formula as laid Annurita case is applied that says that earning members will be entitled to one extra portion of himself after equal appropriation of the income amongst all family members. It would be safe to say that maintenance may vary can be from a lower range of 25 percent to about 35 percent of the income.
Both parties are required to give financial disclosure of their assets and liabilities. Hon’ble Supreme Court of India in Rajnesh versus Neha made it mandatory for both spouses to file their respective affidavit of income detailing all sources of income, expenditure, liabilities, etc. Both husband and wife are required to furnish the following documents amongst others:
We at Divorce Lawyers have been successfully prosecuting as well defending a claim for maintenance. We believe that the determination of maintenance decides the course of the litigation as well as its pace and longevity. Therefore, being top maintenance lawyers, we have polished nuances to deal with complex issues of determination of maintenance. The art of practical advocacy as top maintenance lawyers are being practiced and implemented every day in and out. This results in our huge success in matrimonial law.
Judicial Separation is generally a step towards divorce. Section 10 of the Hindu Marriage Act provides grounds for judicial separation. It is akin to grounds for divorce.
Grounds, process and procedure for Judicial Separation is same as in case of contested divorce. You may read www.divorcelawyers.co.in/live/area-of-practice/contested-divorce for easy understanding.
On successfully proving case for judicial separation by party initiating the process, Court passes decree of judicial separation. It implies that party may live separately.
Standard of proof in case of judicial separation is lesser in degree as compared to contested divorce.
Judicial Separation provides ground for divorce in the event of no cohabitation between spouses in a period of one year after the passing of decree of judicial separation.
It is also permitted subject to the approval of the Court that at appropriate stage, on application by the party filing case of judicial separation to convert to divorce. Timing of such application is a vital factor.
Matrimonial disputes are related with emotions, feelings, ego, and psychological reasons. You would not deny that most difficult thing is to predict the nature and behavior of other human being. We all have tendency of assuming that what we are doing and thinking is correct while others are not doing right. Although, some time we try to rationalize things or making it logical. We pretend to be good listener but we are listening to counter other to score a goal to boost our inflated ego. We are not listening to listen other’s point of view. That may help us in resolving issue. Why don’t we accept we are imperfect human beings?
Relationship can work more positively if we understand the perception of our spouse. Some time such basic things are ignored by us. AT THIS TIME, there is a need of a Counselor or mediator. Such counselor or mediator has no concern or interest with either of the spouse. Such counselor or mediator can understand your problem objectively. They can suggest practical ways to resolve issues and understand the perception of each other. Counselor and mediator may act as a miracle and save the most beautiful relationship of “marriage”.
There may also be cases wherein it is manifestly clear that relationship of husband and wife will not work. Spouses have deep abhorrence against each other for variety of reasons. At those juncture, after fully understanding the impossibility of reconciliation, counselor or mediator would recommend for divorce.
It is entirely into hand of spouses that they understand the fact that divorce is the best remedy in their larger future interest. They can work out their divorce in such scenario in easier manner. Spouses can reach to amicable settlement. Every issue can be resolved by talking. Let the talk to Walk!!! Tough decisions like child custody and visitation rights can be discussed. Mediator or counselor would take care of your decision and facilitate in reaching solution. You would not imagine that you have planned your divorce and worked out in very positive atmosphere to reach to Amicable Settlement.
You are saved from acrimonious litigation saving time, cost and energy. You walk out with held high and can still have healthy relationship.
Thus mediation can work wonders. You are solving your own problem with the intervention of counselor or mediator. As we say, live happily or part amicably!!!
Child Custody Law & Complete Procedure is dealt in the present write up. Child Custody cases involves both parents involved in a matrimonial dispute to establish that one is better than the other. Allegations are levelled to score over each other. Most forgotten questions in such allegations are the presentation of facts to establish that how action of each parent will serve the best interest and welfare of the child(ren).
Legal regime regarding child custody cases and law have shaped over the years. There has been continuous efforts to bring the focus on the need and welfare of the child by way of various pronouncement. Our experience tells us the best outcome lies when both parents consent to an arrangement regarding children in the manner that it advance the cause of holistic growth of the child.
Laws dealing with a child custody case can be divided under following :.
In India, child custody cases are governed under following law.
Child custody cases are filed in the jurisdiction of the family court/competent court where minor child ordinarily resides. For example, father is living in Mumbai. Mother is living in Delhi along with minor child. If father wants to file Child Custody, he has to file the same only in Delhi. Thus, family court or concerned competent court shall have the exclusive jurisdiction over the child custody case to the exclusion of all other courts.
All courts seized of child custody cases are duty bound to consider welfare of the minor child or children as the case may be. Parent seeking child custody has to prove that interest and welfare of the child shall be protected by him/her much better than the respondent/ opposite party.
Following are the broad parameters that court considers while deciding the issue of child custody:-
A petition for child custody or declaration regarding appointment of natural or legal guardian of minor starts child with the filing of the petition by the spouse seeking child custody. Notably, in child custody cases non-custodial parent seeks the custody/guardianship of the minor child. Such petition usually takes longer time and thus application for Interim or Temporary custody as well as Visitation Rights are also filed by the Non-custodial parent.
Custodial parent is required to give response to the petition following which evidence are led by both parents. After closure of evidence of by both parents and their respective witnesses, if any, follows with final arguments and consequent judgement.
In certain situation and exigencies , a writ petition under article 32 of the Constitution of India can be filed in the Supreme court or under article 226 of the Constitution of India can be filed. Such exceptional situation would include following:
Such petition is filed in nature of Writ of Habeas corpus for the custody of the child. It is filed for the expeditious determination of the issue. It is not a full fledged child custody petition but having limited jurisdiction. However, Supreme Court or High Courts are vested with extra ordinary powers/jurisdiction to determine the issue to meet the urgency. General approach of High Court or Supreme Court is to direct parties to approach the Family Court to pursue their remedy(ies). However, there are no dearth of cases when Supreme Court or High Court has exercised to decide the issue on the custody of children. We have seen Supreme Court or High Courts passing urgent directions to meet the exigency of the situation.
Habeas Corpus Petition in the child custody cases are often filed when a foreign country grants custody to the spouse living abroad.
Timing of filing such petition is utter importance. Delay is to to be avoided.
Our expert and top Child Custody lawyers back with incomparable experience understand the legal nuances, emotionally challenging situation, and complexities involved in cases create best solution and practical approach to achieve the objective of the contesting parents.
Our Child Custody lawyers have won most difficult and complicated issues in India or matters involving NRI child custody cases having cross jurisdiction issues.
Children requires protection and support. There is a deep scar in the life of children if issues pertaining to custody of children are not dealt with extreme sensitivity and being conscious of the psychological impact of such disputes over the child(ren).
Win the child!