Victimization under 498A IPC

When a complaint, true or false, is filed by a wife against her husband and against relatives of her husband in a police station, police officials usually call both parties to settle down the dispute or pass on the complaint to the women cell so that both parties can try to reach a compromise to the satisfaction of complainant. 

If the parties are still unable to solve the dispute amicably, then the women cell usually direct parties to go for mediation. If the dispute remains unresolved, then the matter comes back to women cell then police officials register it as FIR. 

Important points: -

1. If the accused is not arrested, then he should file for anticipatory bail as early as he can.
2. If any of the accused is arrested, then they can apply for regular bail.
3. If the arrest warrants are issued, the accused must surrender as soon as he can before the police. It becomes easy to defend the case in the court if accused has willfully surrendered.
4. Sometime these accusations can be placed out of sheer outburst of the sense of revenge, and wife may realize the futility of her actions with the passage of time, therefore husband shouldn’t put more efforts to expedite the judicial process and must wait for things to settle down and let them take its normal course.  


Statutory law Reference.

1. 498A IPC

Prevention of Arrest

1. When a FIR is lodged against husband and his relatives, one should apply for an anticipatory bail for all involved. Even if  one of accused gets the anticipatory bail, others can substantiate their claim on that basis
2. Try to put your case for mediation with the help of your lawyer.
3. Try to schedule your case for Lok Adalat hearing with the help of your lawyer so that it may lead to a compromise.


4. Try your best to negotiate and settle the dispute with the accuser and her parents.
5. If the husband and his relatives have not committed any offense such as demand for dowry or physical abuse, then he has every right to defend his rights and court take cognizance of unsubstantiated accusations.  

Your Claim for Child custody

In matrimonial disputes, the question about rightful custody of children may crop up before the court. The court is usually requested to decide the question during the pendency of the trial. It is an important matter to decide as it not only affects the parents but also the children who may feel being pulled up in opposite directions by parties, they probably love equally. The court can exercise its jurisdiction only if it has jurisdiction in the main petition which is pending before the court. If the child is under the age of 5 years, the mother is usually considered as guardian.

Important points while determining the child custody issue: -  

1.      Age and sex of the child.  

2.      The character and capacity of proposed guardian.

3.      Any wishes of deceased parent i.e. specified in a will.

4.      The minor’s preference, if the child is old enough to give an intelligent preference.

5.      The court usually tries to keep children united.

6.    Though the guardianship decisions tend to tilt a lot in favor of the mother, justifiably so, and guardianship of girl child virtually always goes with the mother only, however, if the mother is ill and financially not strong or a disable then usually court deny guardianship on these grounds.

7.       Usually, the children maintenance cost is borne by the father irrespective of the fact that its mother who has been given the child custody.

  

Statutory law references.

1.      Section 26 of Hindu Marriage Act, 1955

2.      Section 38 of the Special Marriage Act, 1954

3.      Section 25 in The Guardians and Wards Act, 1890

Important judgments: - 

1.      Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka 1982(1)SCALE 608 (Supreme court)

2.      Sheila B. Das Vs.P.R. Sugasree 2006(1)RCR(Civil)758 ( Supreme court) 

3.      Kumar V. Jahgirdar v. Chethana Ramatheertha 2004 ( 3 ) RCR (Civil) 233 (Supreme court)

4.      Roxann Sharma Vs. Arun Sharma 2015(2)RCR(Civil) 93 (Supreme court)

Do: -

1.      Disclose all the facts related to marriage.

2.      Disclose all  the details about the pending cases, if any, to your lawyer

3.      Provide all the details  such as Age, educational expenses, comparative emotional attachment to either parent, physical abuse etc. with your lawyer

4.      Provide details of opposite party i.e. income, status, character, nature etc.  to your lawyer

Alimony Amount Assessment-Important factors- As per Hindu Law

The alimony amount is given at the time of the dissolution of marriage. It is a financial support to either spouse who is unable to earn or unable to maintain himself/herself. The alimony amount can be claimed by either spouse but usually, wife claims it from husband in our patriarchal society. The alimony amount depends on various facts, contexts and their assessment by the court and there is no specific mathematical formula to calculate it despite considerations of all factors involved
The alimony amount can be provided as the one-time payment or as periodical/monthly payment.

Important points while determining the alimony amount

1. Husband’s income from various sources(salary, rent, premium from insurance policies/mutual funds etc.) and his assets, esp. self-acquired
2. Other mandatory deductions from income of either spouse such as income tax, loan repayments etc.
3. Other liabilities of either spouse such as dependents (old parents).
4. If the other spouse is working and he/she has an own income source, the same will be taken into consideration while determining the alimony amount.
5. The social status and lifestyle of either spouse may also be taken into consideration while determining the alimony amount.
6. The expenses of children, education, living cost etc. will be considered.
7. Period of marriage, age, and health of either spouse.

Statutory law References.

Section 25 of Hindu Marriage act 1995 
Section 37 of Special marriage act 1954 
Section 36 of Divorce act 1869
 
Important Judgments
1. U. Sree v. U. Srinivas, (2013) 2 SCC 114 (Supreme court)
2. Ruby Vs Debasish Pradhan 118(2014) CLT859 (Supreme court)
3. Vinny Parmar vs Paramvir Parmar 2011(3)RCR(Civil)900 (Supreme court)
4. Sumitra Manna vs. Gobinda Chandra Manna (AIR 1988 Cal 192)


Important Do: - 
1. Disclose all the facts related to the marriage.
2. Disclose the status of pending cases and details.
3. Provide the income details of either spouse.
4. Provide the self-acquired property details of either spouse.
5. Provide children details & their expenses.

How to Divorce your spouse -Mutual Consent divorce- Hindu Divorce Law

Introduction: - A mutual consent divorce between Hindu couple is governed by Hindu law (Hindu marriage Act 1955) under section 13B.

Section 13B states that a petition for dissolution of marriage may present by both parties before District court If they are living separately for a period of one or more than one year as they have not been able to cohabitate owning to personal differences and that they have mutually agreed that their marriage should be dissolved.

Important Points. 

As per section 13B of Hindu marriage act 1955 

1. Husband and wife have been living separately for a period of one year or more, 
2. That they are unable to live together
3. They are  somehow living together under one roof but owing to personal differences and bitterness in relationship, didn’t have sex for more than a year
4. And that both husband and wife have mutually agreed that marriage has totally collapsed, hence marriage should be dissolved. 

Under these circumstances, a divorce by mutual consent can be filed. 


5. A petition should jointly be presented before the court. 
6. Both parties have freely consented for dissolution of marriage. 
7. The court must be satisfied to the statements made in the petition after making inquiry and hearing the parties. 


Statutory law references-

1. Section 13B of the HMA Act 1955 provides for divorce by mutual consent. period of separation is 1 year)
2. Section 28 of the Special Marriage Act, 1954 provides for divorce by mutual consent.
3. Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent (period of separation is 2 years) 

Important judgments-

1. Soni Kumari Vs. Deepak Kumar 2016(1)RCR(Civil)52 (Supreme court) 
2. Devinder Singh Narula Vs. Meenakshi Nangia 2012(4)RCR(Civil)235 (Supreme court) 
3. Anil Kumar Jain v. Maya Jain 2009 ( 4 ) RCR (Civil) 309 (Supreme court) 
4. Kiran v. Sharad Dutt JT 2000 ( 1 ) SC 532 (Supreme court) 




      Do: 

1. Share all the facts related to the marriage with a lawyer. 
2. Share every document/evidence related to the marriage with your lawyer. 
3. Provide details of ‘Streedhan', how parties are going to settle it, If already agreed else take help from Lawyer
4. Discuss and settle the important issues such as Alimony amount, child custody, and children maintenance before your file for a mutual consent divorce.-IMPORTANT
5. Create MoA (Memorandum of Agreement) along with your spouse and append it with your divorce application.