Custody of Child - Supreme Court

Supreme Court has directed a mother to return to Singapore with her autistic child and subject herself to jurisdiction of the foreign court in  a recent case where NRIs involved in legal custody battle for children,

A bench of Justices Dipak Misra and V Gopala Gowda, however, directed the husband, who has initiated proceedings against the wife in Singapore, to fund her and the child's air ticket and also withdraw any contempt filed against her in the Singapore court.

The apex court's direction came after a petition filed by the father accusing his estranged wife of illegally spiriting away their child to India despite an order of the Singapore high court, directing she return with the child.

It was informed to the bench that the father of the child is a citizen of Singapore and settled there since 1978. After marriage, the wife also became a permanent resident of Singapore. The couple was blessed with a boy who was autistic by birth and also acquired citizenship of Singapore.

Due to marital discord, the mother took the child to India on the pretext of holidays. She promised she will return and had booked her return ticket as well but never came back.

The father then filed a petition before the Singapore high court which directed the return of the child to the jurisdiction of Singapore. Since the mother failed to comply with the high court's order, the father had to move the court in India.

SC directed the father to arrange a separate house for the mother and the child, and also deposit a sum of Rs 2 lakh for their expenses. SC also directed that all proceedings initiated by the wife in India will be put on hold till the decision by the High Court of Singapore comes while the father was restrained by SC from initiating any proceedings of contempt in Singapore.

http://timesofindia.indiatimes.com/city/delhi/Supreme-Court-tells-NRI-mom-to-go-back-to-Singapore-with-kid/articleshow/35271698.cms?intenttarget=no

Alimony to husband by wife

In recent divorce cases, courts, deviating from the norm, have been denying maintenance to the wife if she is capable of earning or was earning in the past. There are also cases of the wife being asked to pay maintenance to the husband.

The husband paying maintenance to the wife is the textbook model for divorce proceedings. However, in a recently developed trend, the courts have been denying maintenance to the wife if she is capable of earning or was earning in the past. There have also been cases where the court, instead of going the conventional way, has told the wife to pay maintenance to the husband. Even the wives, in a hurry to end the marriage as soon as possible, are opting for out-of-court settlements and paying the husbands a permanent alimony.

Maintenance Plea by the wife rejected

In a recent judgement, a trial court in Delhi denied the plea of a woman seeking maintenance from her husband. It was reported that the trial court dismissed the woman's plea seeking residential maintenance from her estranged husband, and observed that no financial assistance can be provided to a woman if she earns as much as her husband. Anuradha Shukla Bharadwaj, additional sessions judge, observed, "In the era of gender equality, bias cannot be shown to one gender and discretionary relief of financial assistance cannot be granted to wives despite their capability to earn as much as their husbands."

The court, reportedly, said that rental maintenance would have been awarded to the wife had she proved that she was incapable of arranging an accommodation for herself. However, in this case, she was living with her mother.

Although uncommon, it is not the first time that a court has denied maintenance to the wife. There have been several cases where the court has supported the husband and denied the wife's plea for maintenance. In a case, "The husband was an NRI from the UK and the wife was working with a multinational bank here in Delhi, and she was drawing a salary of `60,000-70,000. They had a troubled marriage so the wife filed for divorce. She asked for maintenance under Section 125 of the Code of Criminal Procedure, 1973, from her husband, stating that he was quite rich. However, her plea for maintenance was rejected and the court ruled that since she was earning well, she didn't need her husband's money to survive, despite the fact that he was quite well-off."

"A trend has developed recently wherein the court is denying maintenance to the wife if she has capability, capacity and past employment." Citing a case, he says, "There was a case in which the wife was a dentist by profession and used to be employed. However, at the time of divorce, she wasn't working and asked for maintenance from her husband. But the court denied her maintenance because, in this case, she had the capability and capacity, and was working in the past. So, she could work again to support herself."

Family resource cake

It is not necessary that either of the party has to pay maintenance to the other in divorce cases. "In 2004, Justice Vikramjeet Sen of the Delhi High Court (as he then was) worked out a formula involving a 'family resource cake' in order to provide maintenance to even working wives. Justice Sen, in the said judgment, combined the income of both the spouses, calling it the 'family resource cake.' Half of the 'cake' was allocated to the husband to meet his expenses, and the other half to the wife and children, for their maintenance. This method has been widely followed by other courts in Delhi when awarding maintenance to either spouse."

Maintenance in favour of the husband

Although in most cases, the wife is awarded maintenance to enjoy the same lifestyle as that of the husband, there are also instances where the reverse happens. Not only is the wife refused maintenance, in many cases, she is also asked to pay maintenance to the husband.  In a case where the court granted maintenance to the husband, the Court granted maintenance in favour of the husband, who was suffering from a mental disorder, while the wife had a government job. The wife earned about `20,000, and the husband was granted a maintenance of `2,000." 

There was another case in which a court passed a judgment supporting the plea of a husband who, under Section 24 of the HMA, wanted maintenance from his wife. The trial court directed the wife to pay the husband `20,000 per month as maintenance, `10,000 as litigation expenses and also to provide a car for him. This judgment was later challenged in the High Court by the wife, but the HC also supported the judgment of the trial court. The wife was running a paying guest facility while the husband was unemployed.

The law which allows the husband to seek maintenance from his wife

Husband can only seek maintenance under Section 24 of the Hindu Marriage Act. "Section 24 of the Hindu Marriage Act, 1955, provides that the court, in case of either the wife or the husband having no independent income sufficient for her or his support, may, on the application of either of the spouses, order to pay to the petitioner the expenses of the proceedings and monthly expenses during the proceedings such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable. So, under this section, even the husband can file an application claiming maintenance pendent elite in the pending divorce case. But the only pre-requisite is that he should not have sufficient income to maintain and support self in consonance with the lifestyle and income of the wife. Assuming the wife is earning much more than the husband, the husband only in that eventuality shall have the locus to file for maintenance."

http://timesofindia.indiatimes.com/life-style/relationships/man-woman/Rich-wives-pay-alimony-to-hubbies-to-end-marriage-asap/articleshow/35114784.cms

Dowry Death and Indian Families

In today’s Indian society dowry is like a norm, we see that people spend lavishly on marriages. The root cause of the problem starts from here, The parents of the bride fulfill all the wishes of groom’s family like spending lavishly on wedding, gifting cars etc. when the bride reaches her matrimonial home, The selfishness of groom’s family grows .Now they demand more things like household items, property etc. Not in the condition to fulfill the infinite demands of groom family, The Groom family starts to harass the newly wedded wife so much and so grave that she thinks it’s better to end the life than to live it. In the end the lavishly solemnized wedding ends into tragic death of the bride. The cause of death is not natural that is for sure, it may be due to poison, suicide, even hanging on the ceiling, burns.

 

This the most common story of all the dowry related deaths .For this common story there must be a common Law on different footing as that of murder and culpable homicide as the cases of murder and culpable homicide demands much greater evidence and are much complicated. The dowry death is covered in sec 304 B IPC which is:

 

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called" dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.- For the purposes of this sub- section," dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

 

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

 

Basic Ingredients:

 

1. There must be a death of the woman.

2. The death of the woman must be in un natural circumstances.

3. And there must be evidence that she was subjected to cruelty due to demand of dowry.

 

So there is a stark difference between section 299/300 and 304B as 299/300 has much wider scope and covers many motives, But sec 304B the main motive is Dowry due to which cruelty and harassment is performed on the bride and due to which she died.

 

Evidence in 304 B-

 

For the protection of harassed party the evidence act comes to rescue for a crime to come under the 4 corners of evidence act, The material evidence is cruelty and harassment on the bride.

 

113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.

 

Now due to this section the burden of proof shifts to defendants, now they have to show that they have not done cruelty and harassment in order to evade this section.

 

Unlike in murder cases there is always presumption of innocence, The section of murder has to pass through quite stringent tests than that of dowry death. In dowry related death those people who are involved in cruelty (relatives) are held to be liable for the dowry death.

Source: Nitish Banka