Wednesday, September 1, 2010



The courts will now take into consideration a man’s joint family finances when granting alimony. Smitha Verma looks at the repercussions





Illustration: Suman Choudhury

Ajay Sahai (name changed), an engineer from Mumbai, is a worried man. A recent Bombay High Court ruling is causing him sleepless nights. The court said a man’s joint family finances can be taken into account when the quantum of maintenance to be paid to his estranged or divorced wife is being considered. Sahai, who is fighting a divorce case in court, feels that the judgment may adversely affect him. “I fear this ruling will have a strong impact on my case,” he says.

Maintenance in a marital discord case has always been a troublesome issue — one side would feel it’s too little, and the other, that it’s too much. That’s why the Bombay High Court ruling — which asked a Pune businessman to pay his estranged wife Rs 20,000 instead of the Rs 2,500 that had previously been decided — has kicked up a furore. The court took into account his joint holdings in the family property and the family’s lifestyle while announcing the verdict.

Not everybody is happy with this. Groups that fight for men are perturbed. “This could lead to further misuse of Section 498A (anti-dowry law),” says D.S. Rao, president of Calcutta-based men’s advocacy group Hridaya. “Once we receive a copy of the judgment, we’ll see how to protect our interests,” says Rao.

Sahai, who lives in a joint family, cannot understand how undivided property can decide his social status. “I may inherit the property but how will I be able to pay a monthly maintenance based on my family property? My monthly income should be the deciding factor,” he says.

Clearly, the issue is a contentious one. While some lawyers stress that it will help women, others say it will put men in the dock. Neeraj Aggarwal, co-ordinator, Save Family Foundation, a Delhi-based group working for the interests of men, is among those troubled by the ruling.

Stressing that it can lead to irrational demands, he cites the example of a woman who demanded alimony from her father-in-law based on inheritance laws. “The woman had left her husband after he was diagnosed with cancer. After his death she demanded money from the family citing her right to the property,” says Aggarwal. “The trial court sympathised with her and awarded her maintenance,” he adds.

According to Niladri Shekhar Das, secretary, Gender Human Rights Society, a Delhi-based non governmental organisation, courts should examine the income tax returns of estranged parties before taking a decision on alimony. “What about the wife’s inheritance? Do our esteemed courts ever look into that,” Das asks.

There have been some rulings where a wife was asked to pay maintenance to her husband, or an unemployed man was absolved of the responsibility of supporting his estranged wife. But such cases, the men’s group argue, are rare. “This ruling is in violation of a previous Supreme Court judgment which said a wife’s maintenance should be based on a husband’s income and not of the in-laws’,” says Aggarwal.

Das points out that a woman cannot claim right to property which has been divided, and to which the husband has no share. “Only undivided property of a joint family — where the husband holds a share — can be looked at,” he says.

But those who hail the judgment point out that it has come in the wake of an increasing number of cases where husbands fighting a divorce do not disclose full details of family property in a bid to lower the maintenance amount they have to pay their wives. “There is lack of transparency in many cases when it comes to declaring assets. This way even if a property is in a joint holding, one can't evade the payment,” says Supreme Court lawyer Pinky Anand.

Anand believes the ruling will help women get proper alimony. “It is a commendable ruling and goes with the ethos of Indian society,” she says. She stresses that the treatment meted out to women is “shameful” when it comes to property. “We are still not giving women equal rights to property. I feel it’s a reasonable and appropriate order.”

Nidhi Suri (name changed) believes that the court has spoken up for women like her. Her husband had initially not disclosed details of an ancestral house in Chandigarh when they moved court for a divorce. “I hope the apex court takes this judgment as a landmark initiative to give a fair deal to estranged wives,” says Suri, a Jaipur-based media professional whose alimony case is pending in the Delhi High Court.

Anul Shiggaon, a Bangalore-based IT consultant, is on the other side of the fence. Shiggaon, who is without a job, has been embroiled in a maintenance case with his estranged wife for the past two years. “My wife, who is employed, has been awarded maintenance despite being able to support herself,” says Shiggaon, who has been asked to pay Rs 25,000 a month as maintenance. “I have a home loan and am struggling to maintain myself,” he adds.

Divorce lawyer Vijay Raj Mahajan believes the ruling merely means more litigation. “If the property is lying idle, such judgments can create problems for petitioners,” he says. The lawyer rues that maintenance often turns into a gender issue. “But maintenance is not a matter of right. It’s a question of whether one can maintain oneself or not,” adds Mahajan.

The ruling has brought several issues out in the open. And while people are divided over its merits, what is clear is that maintenance continues to be a thorny issue. And the judgment has only underlined the wall between the warring parties.

'Domestic violence law gives no right to seek maintenance'

'Domestic violence law gives no right to seek maintenance'

2010-08-31 20:10:00

The Delhi High Court Tuesday held that the Protection of Women from Domestic Violence Act, 2005 does not give a woman any additional right to claim maintenance from husband.

Justice Shiv Narayan Dhingra, while dismissing the petition of Rachna Kathuria, said the act only puts on fast track the enforcement of existing right of maintenance available to an aggrieved person.

'If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in civil suit or by the court of metropolitan magistrate in an application under section 125 of Criminal Procedure Code (CrPC), she does not have a right to claim additional maintenance under the act,' said Justice Dhingra.

Under the act, the court of metropolitan magistrate (MM) has the power to grant maintenance and monetary relief on an interim basis in a fast track manner only in those cases where a woman has not exercised her right of claiming maintenance either under civil court or under section 125 of CrPC.

'If the woman has already moved court and her right to maintenance has been adjudicated by a competent civil court or by a competent court of MM under section 125 CrPC, for any enhancement of maintenance already granted, she will have to move the same court and she cannot approach the MM court under the act by way of an application of interim or final nature to grant additional maintenance,' the court said.

The petitioner had filed an application under the act seeking maintenance.

An MM dismissed the application after finding that a civil suit is already going in a different court and she was getting a total maintenance of Rs.4,000 per month from her husband.

The court also noted that Rachna was living away from her husband Ramesh since January 1996. She also filed a civil suit under Hindu Adoption and Maintenance Act and an application under section 125 CrPC.

Justice Dhingra in his observation said that in case the petitioner felt that maintenance awarded to her was not sufficient, the proper course for her was to approach the concerned court for modification of the order in which she had filed civil suit and which has granted her maintenance.

SC - Women can file for divorce anywhere, high Court order on actor's divorce application upheld

SC - Women can file for divorce anywhere, high Court order on actor's divorce application upheld

Legal Correspondent

Friday, Aug 20, 2010

New Delhi: The Supreme Court on Thursday declined to interfere with a Madras High Court judgment holding that a family court in Chennai had the jurisdiction to decide the divorce case filed by Tamil actor Sukanya against her US-based husband.

A Bench of Justice P. Sathasivam and Justice B.S. Chauhan dismissed a special leave petition filed by R. Sridharan, challenging the High Court judgment. In a brief order, the Bench said, "We do not find any valid ground to interfere with the High Court order. The SLP is dismissed leaving open the question of law. If the appellant has any grievance he can approach the family court. Since the application [for divorce] is pending since 2004, we direct the family court to decide the matter in four months."

Justice Sathasivam told appellant's counsel K.K. Mani, "The facts are against you. There are many disputed facts. Whether the appellant is a US citizen; if so, when did he acquire US citizenship are all matters which can be adjudicated only by the family court."

Counsel Gita Rama Seshan, counsel for Ms. Sukanya, maintained that the Hindu Marriage Act would apply and the family court in Chennai would have the jurisdiction to decide the divorce application.

Justice Chauhan told counsel, "You [the appellant] have a residence in Chennai. You are visiting the place. Whether you have acquired properties are not, what your intentions are if you have acquired any property can be gone into only by the family court."

Mr. Mani, however, maintained that the house in Chennai belonged to his father and he did not own any property. But Justice Chauhan said, "These things can't be decided by us. Issues have to be framed and evidence has to be let in. There must be proper adjudication. But you did not allow the family court to decide anything. Even the question of jurisdiction could have been raised as a preliminary issue. But you have rushed to the High Court. Let the family court decide."

According to the appellant, his marriage with Ms. Sukanya's took place as per traditional Hindu customs at the Balaji temple in New Jersey, U.S., in April 2002. She returned to India in January 2003 and never went back.

On a writ petition filed by Mr. Sridharan — through his Power of Attorney R.V. Krishnan — challenging the matrimonial proceedings on the ground that he could not be subjected to Indian laws, a single judge and a Division Bench of the Madras High Court had held that Ms. Sukanya was entitled to file the petition in the place where she was staying.

The appellant's contention before the Supreme Court was it was settled law that in order to apply the provisions of the Hindu Marriage Act both parties must be 'domiciles' of India. As the appellant was a U.S. citizen, he could not be subjected to Indian jurisdiction and face the matrimonial proceedings which were not maintainable in law.

He argued that only the Foreign Marriage Act would apply to him.

'Women can file for divorce anywhere'

'Women can file for divorce anywhere'

TNN, Jul 13, 2010, 02.30am IST

CHENNAI: In a crucial ruling that is sure to cheer up women fighting divorce cases with husbands residing in a foreign country, the Madras high court has said that the family court in India had jurisdiction to try matrimonial litigation even if the husband is a citizen of a foreign country and not an ordinary resident of India.

A division bench comprising Justice Elipe Dharma Rao and Justice KK Sasidharan pointed out that the amended Section 19 of the Hindu Marriage Act extended to outside India. "The fact that the husband is residing outside the territory does not prevent the wife from applying before the local designated court to redress her grievances," the bench said.

The judges were passing orders on a case involving film actor R Sukanya and her husband R Sridharan, who is an American citizen. The two got married in April 2002 as per Hindu rites and custom at the Balaji Temple in New Jersey in the US. After nearly a year she returned to India, started to act in films, and also filed a divorce petition in 2004. As her husband did not attend the proceedings, the family court granted her divorce ex parte.

On representation from her husband Sridharan, later the family court reversed its order. He also filed a petition in the high court to restrain the family court from hearing the case on the ground that the court in India had no jurisdiction to take up the matter involving American citizens.

Dismissing his claims, the judges said that when the marriage was solemnised under the Hindu law, the proceedings for divorce also has to be made under the same Act. Referring to the amended Section 19 of the Act, the judges said that with effect from December 23, 2003, the wife is now entitled to file a matrimonial petition before a district court in whose territorial jurisdiction she is residing.

The judges rejected Sridharan's claims of domicile, and said, "when the marriage was solemnised under the Hindu law, the proceedings for divorce has also to be made under the said Act. He cannot take any exception to the proceedings in India under the provisions of the Hindu Marriage Act merely on account of his US citizenship or domicile."

Explaining the rationale behind the amendment, the judges said the original section was causing serious prejudice to women as it was not possible for them to initiate proceedings before the court in whose jurisdiction they are residing.

"Because of the rigid provision, women were compelled to approach the court in whose jurisdiction the marriage was solemnised or the husband resides or the parties to the marriage last resided together. The jurisdiction clause as it stood originally was really unfair to women," the judges said and directed the family court to go ahead with the hearing of the actor's case and conclude it within two months.