Thursday, December 29, 2011

How to prevent your Divorce

With the divorce rate so high many couples who are in stormy marriages feel that there is no way to save my marriage. It’s easy to think that if all those people can’t make it we can’t either. If you still love your mate and you think that you are loved in return then your marriage has a good chance of succeeding.

There are two of you in the marriage and both of you must want to make it work. Following are some tips that can help bring you together again and increase the chances of your marriage lasting:

1. No marriage is perfect. Unlike fairy tales, typical marriages have their flaws just like each of us has. Do not expect perfection from each other. Accept that there will be lumps and bumps along the way.

2. Having a successful marriage requires that you both work at it to make it strong. The more work that you put into your marriage will result in an honest and happy relationship. Not taking this seriously can be detrimental. The areas that typically need the most work involve trust and respect in one another. Without these things, your relationship will fall apart.

3. Communicate with each other. Create an environment where you can talk and listen to each other without getting upset. Speak calmly and clearly about how you feel and allow your partner to do the same. Make sure to listen to what they have to say, regardless of what they say. Discuss how each of you feels and try to find common ground where both of you feel that you can find solutions for issues you are facing. The more open and honest you are with each other, the better.

4. Let the problems of the past stay in the past. Do not dwell on them. Do not let past mistakes or misunderstandings determine the future of your marriage. While your past problems may be quite serious, dwelling on them will not help your marriage. Focus on the here and now and take each day as it comes. Each day has enough problems of its own.

5. Be more conscious of one another. Be considerate of each other’s needs and feelings. You can make thoughtful gestures to simply show that you are thinking of them. If you are unsure as to what you should do for your spouse, ask them what you can do to make them happy. Doing something that will make them feel loved and special can go a long way towards strengthening your relationship. Sometimes doing the simplest things can mean the most to them.

If you have tried all of the above and still are asking how to save my marriage, a professional marriage counselor may be your best option. The decision to go to a counselor must be made by both of you as it will not work if you both do not participate fully.

If you are both truly committed to making changes to save your marriage, a counselor can offer unbiased advice to help you. By getting advice from counselor, it may help you see your problems in a different light and help you find solutions.

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Sunday, December 25, 2011

Girl under 21 must get parents’ consent for marriage: Karnataka High Court

Observing that a girl below the age of 21 years cannot judge the character of a person she marries, the Division Bench comprising Justice Bhaktavatsala and Justice Govindaraju directed police to lodge a suo motu kidnapping case against the petitioner, Avinash of Sudhama Nagar.

The court further observed that a girl below 21 years of age must have the consent of the parents for her marriage. "Parents should choose the boy for a girl aged below 21, as it is they who bear the brunt of an unsuccessful marriage," the Bench said.

Terming as void Avinash's marriage with the girl without her parents' consent, the court levied a cost of Rs 10,000 on him. "The court cannot shut its eyes even when police fail to initiate action," the Bench said. On the petitioner's contention of illegal detention, the court said, "Parents keeping the child with them does not amount to illegal detention."

The girl's parents had lodged a complaint of kidnapping on February 7, 2011, with the Wilson Garden Police after their minor daughter, a second PU student, went missing on February 2 while on her way to college. Avinash had taken her to Krishnagiri where he married her on March 3, 2011, after she turned 18 on March 1.

On returning to Bangalore on March 28, he appeared before the police, who brokered peace between the two families by ensuring that the boy got to meet the girl twice a day and appeared before the police daily. However, when the girl's parents refused to abide by the deal and denied him permission to meet his wife, he filed a habeas corpus plea.

When the matter came up for hearing on Thursday, the Bench lashed out at the petitioner saying, "This is (the marriage) nothing but a case of kidnapping. If the marriage fails, the girl will return to her parents who are the actual sufferers."

The Bench said that parents protecting their child was not illegal detention. "The Hindu Marriage Act is not a contract. It needs permission from parents. (Avinash's case) is nothing but misuse of the girl and her age," the court said.
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Saturday, December 24, 2011

NRI Husbands- The Dowry Victms

A growing number of Indian American husbands claim to be victims of an Indian law against dowry that has them vulnerable to exploitation - both financial and emotional - by their wives and in-laws.

The complaint is also reflected in support groups and blogs - ‘Batteredhusband’ and ‘Indianbakra’ - in the US, meant for male victims of the Indian legislation.

The anti-dowry law is being misused, say some husbands, while others allege extortion or vindictiveness by wives and their families when it comes to child support or custody.

NRI men apparently get harassed when their estranged wives go to India, at times illegally with the children, and file criminal cases against their ex-husbands with police.

NRI men are vulnerable, agreed a social rights activist here. Not only do they face demands for thousands of dollars to withdraw harassment cases filed against them but are also coerced to give US visas to the wives’ families, he added.

According to activists, there has been a dramatic rise in misuse of the law, with cases reported from the US, Britain and Canada.

The number of cases against Indian Americans has been significant enough for the State Department to publish a travel warning: “A number of US citizen men who have come to India to marry Indian nationals have been arrested and charged with crimes related to dowry extraction. Many of the charges stem from the US citizens’ inability to provide an immigrant visa to prospective spouses to travel immediately to the US.

“The (Indian) courts sometime order the US citizen to pay large sums of money to his spouse in exchange for dismissal of the charges. The courts normally confiscate the American passport and he must remain in India until the case has been settled.”

A group of victims and their friends in the US set up last year. Satya, 30, a victim-turned-volunteer and software engineer in California - who gave only his first name - maintains the site. The number of hits, he said, is an indication of the extent of the problem.

“In July alone we had 100,000 hits,” he said. “About 80 people from the US have filled up a form on the site seeking advice. There are 20 Canadian residents seeking help. We have had about 200 requests for help from the Delhi-Noida-Ghaziabad belt (in India) alone.”

Another victim, Rajeev Mehta, is an associate director of neonatology and associate professor of pediatrics at the Robert Wood Johnson University Hospital in New Brunswick.

In April 1994, when the New Jersey-based physician met his now ex-wife, Nalini Michelle Gupta, he was one of the highest paid academic neonatologists in the US.

“Soon after we started living together. We got married in October 1994 because she was pregnant. Soon after the marriage, I discovered that she had had numerous failed relationships. I filed for a divorce when I realised that she and her family were using me,” Mehta said.

“After more than three years of divorce litigation in the US and having proved my case before the Superior Court of New Jersey, I obtained a divorce. The court awarded me sole legal custody of my children and determined that Nalini had been cruel towards me, had destroyed my well-paid job in New York and had fabricated a story of domestic violence to counter my divorce petition,” he added.

“Knowing that she was in serious trouble with US courts, Nalini decided to run away to India. In order to carry out the abduction of the children (aged 12 and nine), she claimed that her father was on his deathbed in India and his last wish was to see his grandchildren,” he said.

“In India, my ex-wife filed a false dowry case. For filing this case, she lied and claimed that her parents had given us gifts worth $12,000. She conveniently concealed the fact that ours was not an arranged marriage and we had met and lived together in the US prior to (marrying) solely because she was pregnant,” Mehta said.

Following his ex-wife’s abduction of his children, the US government revoked Nalini’s passport. On July 12, Interpol issued an alert for her, Mehta said.

The delay in the Indian judicial system did not make it easier.

Mehta has written to US Congressmen and Indian politicians and spent several thousands of dollars in legal fees. But he does not see any “resolution in the near future".

Some victims are not even aware of the provisions of the law, activists say.

Californian resident Bhavani Ramamurthy said: “In 2005 my brother’s wife left Texas for India with their child following some disagreement. Later I went to Chennai to attend my mother-in-law’s funeral.

“One day the police came to our home and said my sister-in-law was at the police station and wanted a reconciliation. When my mother and I went to the station, we found my sister-in-law there.

“The police officer turned abusive and took me and my mother into judicial custody. Even though I told the police that neither my mother nor I had ever lived with my sister-in-law, it did not help. Both of us were taken into judicial custody for seven days. The police also took my passport away,” she said.

Bhavani said she and her relatives had to bribe the police to expedite the legal process.

“We paid a lot of money at every stage. For them, we (from the US) were like golden ducks. Till this happened, I did not even know that such a law existed. What amazed me was that the police did not question any of the statements my sister-in-law made.

“We had to spend our days with petty criminals. The woman who made false statements got away scot-free and was not even charged with perjury. Everyone makes money. It is a form of legal terrorism. I still get nightmares thinking of my experience.”

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Wednesday, December 14, 2011

498 A Misused

In the cases Preeti Gupta v. State of Jharkhand (decided on August 13, 2010) and Ramgopal v. State of M.P. (Order dated July 30, 2010) relating to Section 498A, the Supreme Court of India has observed that complaints are not always bona fide and are at time filed with oblique motive. The Court has, inter-alia, requested the Law Commission of India to examine different aspects of Section 498A including that of making it compoundable. Giving this information in written reply to a question in the Lok Sabha today Shri Salman Khurshid, Minister of Law & Justice, said that the Law Commission of India has considered the above decisions of the Supreme Court of India. As per the information received by the Commission, more than one lakh cases are pending. The subject relating to Section 498A has been discussed at the meeting of Law Commission of India held on 31st October, 2011 and in the light of deliberations, the Law Commission will prepare the Report which will detail the need to make the offense under Section 498A IPC ‘compoundable’ or not. The Report will also deal with other aspects relating to Section 498A such as making it bailable, process of arrest, conciliation etc.

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Indian Govt to make easy about Divorce Laws

The Indian government has proposed a new law which will make it easier for couples to get divorced.

It has ordered that the country's Hindu marriage act should be altered to allow irretrievable breakdown of marriage as grounds for divorce.

Up until now, a divorce would in most cases be granted by the courts only if there were mutual consent.

Correspondents say that marriage breakdowns are becoming more common and India's divorce rate is increasing.

Minister of information Ambika Soni said that the proposed change in the law would help an estranged partner get a divorce "if any party does not come to court or wilfully avoids the court".

Last year the Supreme Court said the judiciary should strive to keep married people together, but it also ruled that couples who had completely split should not be denied a divorce.
'Raw deal'

The latest proposed amendment, passed by a cabinet meeting chaired by Prime Minister Manmohan Singh, will include irretrievable breakdown of marriage as a legal justification for divorce for the first time.

"In today's day and age it may be a welcome step but it will only really help urban women," Kamini Jaiswal, a Supreme Court advocate, told the AFP news agency.

"Rural women will still get a raw deal as they are more oppressed by their husbands.

"Divorce is definitely more socially acceptable in urban India," she said. "I have seen a rapid rise in divorces, but in order to obtain a divorce it can take anywhere from six months to 20 years."

Official figures on the divorce rate are unavailable but experts say that roughly 11 Indian marriages in every 1,000 end in divorce. The rate in the United States is about 400 in every 1,000.

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Saturday, December 10, 2011

Divorced woman can't use ex's name, rules HC

``What's in a name...'' The famous Shakespearean line from Romeo and Juliet popped up during an acrimonious divorce case on Wednesday. ``A lot,'' said an aggrieved man, ``especially when my ex-wife is misusing it''. The Bombay high court concurred and in a rare order that might make divorced men smile, directed the divorced woman to stop using her former husband's name and surname.

The HC further clarified: ``ex-wife cannot use the husband's name anywhere, including in her bank account''. The landmark judgment was passed by Justice Roshan Dalvi as she dismissed a petition filed by a woman challenging an interim order of the family court in Bandra.

R R Vachha, principal judge of the family court in Mumbai, had in September last year restrained the woman from using her ex-husband's name and surname as their marriage had ended four years ago. ``By using the ex-husband's name or surname, there is always a possibility of people being misled that she is still the wife, when in fact she is not,'' said Vachha. The HC upheld the family court order and said it need not be interfered with but should be given effect to ``for all purposes''.

The battle over names between the couple arose a year after the family court granted them divorce in February 2006 and the HC finalized it the same year. But the wife says she has moved Supreme Court where the matter is pending; she claimed she was still his wife.

The couple had begun their divorce fight in 1996 after staying together for a little over six months. When the woman filed for more maintenance after the divorce, the husband — a 49-year-old police inspector — contended through his lawyers Ramesh and Sadhana Lalwani that his ex-wife continued to use his name though she was no longer his wife legally and sought that she be restrained from doing so.

The man alleged that she was ``mischievously posing as his wife, entering into altercations and caused embarrassing situations for him''. He produced a news report from a local paper in his native village in Maharashtra about one such act of hers and said in villages where people were known by their family names, such behaviour affected not only him but his entire family.

He also argued that since the woman was not a wife anymore, she was not entitled to tag on her ex-husband's name and surname to her own as it would be misleading. The wife argued that her ex was merely being ``malicious and trying to malign'' her.

The family court held that ``the marriage had come to an end by virtue of theorders of two courts, but still the woman claimed to be the wife''. Observing that the issue arose out of a marital relationship, it restrained her from using the ex-husband's name.

The woman immediately moved the high court in appeal and said the family court order was wrong. Her lawyer Milin Jadhav, the HC said, ``fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband''. He hadalso said that the bank account of the wife stood in both her maiden and married names.

Justice Dalvi observed that ``this itself shows that the wife uses the name of the ex-husband even after their marital relationship has been dissolved by a court order'' and significantly held that ``the description of the bank account was improper and the family court order had to be adhered to''.

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Your Daughters Birth Right

Gone are the days when daughters were dependent on mercy their male relatives for their share in the ancestral property. I am referring the finding of Supreme Court in case of Gaduri Amma & other Vs Chakri Yanadi & others Civil Appeal 8538 / 2011 dated : 12th October 2011.

The finding of the case law as under which any body can understand by simple understanding to law : -

1) Inheritance under Hindu Law is governed by Mitakshara Law through Hindu Succession Act, 1956 which is substituted by Hindu Succession (Amendment) Act, 2005 w.ef. 9th September 2004.

2) After this amendment the Hindu daughter has equal right in the ancestral property as good as a Son can have. Rather, it is true that in eyes of Law daughter and Son have exactly equal rights and share in property.

3) The marital status of daughter does not have any effect to her rights in ancestral property. (Married or unmarried or divorcee or deserted daughters have equal rights ..marital status does not have any impact in this regard.)

4) If a daughter dies before partition of ancestral property, then her children will have equal rights in property which the deceased daughter can enjoy as if she would be living.

5) Remember, the Mitakshara Law after amendment of 2005 (as above) will not effect in following conditions which means the daughters will not have rights under following conditions :

- Partition took place by registered partition deed before 20th December 2004.

- Court has passed the final decree on property division before 20th December 2004.

6) If a preliminary decree is passed in a partition case but final decree is not passed then the preliminary decree can be amended and a second preliminary decree can be prepared in light of amendment 2005. There is no confusion in this regard now and question of amending the preliminary decree is settled by this Judgment.

7) This judgment or amendment in Hindu law will no way give any right to sue the sons/father/ grand father for division made prior to passing of this Act because this amendment is not having retrospective effect.

It is very useful law for common public and people should be made aware specially daughters who should know their rights protected by Hindu Law.

From the Desk of Daniel & Boaz
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Divorce - vs - Annulment

There is a lot of confusion about the difference between a divorce and an annulment. There is also confusion between a legal annulment and a religious annulment.

A divorce is a legal end to the marriage -- deciding all issues involved in the closure of the marriage and often assigning fault to one of the parties for the end of the marriage. The end result of a divorce is dissolution of the marriage. An annulment is also an end to the marriage and entails all the decisions a divorce involves if needed -- property and debt division, custody, child support, and alimony. However, an annulment is a legal determination that the marriage was never valid in the first place.

An annulment determines that the marriage was not legal or valid when it was entered into and therefore never truly legally existed. The annulment legally erases the marriage, as if it never was. One important thing to note is that if you had children together during the marriage, the children are still considered to be legitimate -- conceived in and born into a legal marriage and legal child of both of you. Annulments are more common with very short marriages, where one or both parties realizes rather quickly that a mistake was made, but it is certainly not unheard of for a much longer marriage to end in annulment. Alimony cannot be awarded in a judgment of annulment, since the court is deciding there was no legal marriage to begin with.
More information on the divorce process:

The Divorce Process

How to Get a Divorce

Legal Ease

Annulments are not available because you've changed your mind, aren't happy, feel you made a bad decision, are abused by your spouse, or feel you've been treated unfairly. There has to be a legal basis for determining the marriage was not valid. In most states, the legal process for an annulment is much like that for a divorce. Similar papers are filed and similar hearings are held. An annulment can be contested, just as with a divorce. However, annulments are often agreed upon by both parties, and since they usually happen very early in a marriage, the process is generally quick and easy. Annulments are not very common, but a lot of people seem to think they ought to be able to get one. In fact, an annulment is really the exception to the rule and very few people actually do get them.

Reasons for Annulment

Each state has its own requirements for granting an annulment, but usually include the following:

One spouse was underage at the time of the marriage
One spouse misrepresented him- or herself to the other in some significant way (this often involves fraud of some kind)
One spouse was mentally ill at the time of the marriage
One spouse is unable or unwilling to consummate the marriage
The parties are related to each other in a way that prevents marriage in that state
One spouse was already married to someone else at the time of the marriage
One spouse concealed or withheld important facts, such as having a disease, having previous children, being infertile, and so on.
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