family dispute
source: http://myfreshstartlawyer.com/

Introduction

Love is so complicated, that is why it is love. The family is all about love, caring, understanding, socialization and it is the ultimate source of support for an individual. It is a combination of feelings, attachments, and emotions, which helps an individual to live a happy life. Almost every person gets married at some point of time in their life so that they can create their own family by procreation, and education of children, marriage has for its object the mutual society, help, and comfort, that the one ought to have of the other both in prosperity and adversity.

Marriage is one of the most religious and sacramental ties between two persons. It is the ultimate union of two persons as well as their families. Marriage is the most solemn engagement in which one human being can contract with another. Marital companionship is a type of intimate relationship, which husband and wife enjoy due to the cohabitation with each other during their lifetime.

Disputes

Sometimes these lovely relations can be turned into serious and profound disputes and can affect many lives at a time. Then, to protect the legal rights of the aggrieved person and to serve justice, the law has to interfere between these relations. Matrimonial disputes sometimes are of a serious nature that directly affects the prestige of families in the society and it acts as a social stigma.

After solemnization of marriage, two people cohabit with each other, who lived different lives before that, and here comes misunderstandings, trivial issues, etc,. These issues sometimes even lead to the institution of divorce suits and many other criminals and civil proceedings.

Indian Law

As per Indian laws, the divorce suits mainly comes under two acts namely, The Hindu marriage act,1955; and The special marriage act,1954; section 13 of HMA and Section 27 of SMA clearly defines ‘divorce’. Divorce proceedings are a little bit biased towards wives. This is because of section 498A of the Indian penal code and Section 125 of the code of criminal procedure. These are some special provisions that are made to protect women, but sometimes the very law which is made to protect women can be misused as a weapon against their husbands.

Under section 489A of IPC, the husband and relatives of husband can be booked for treating wife with cruelty and shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Misuse of this section by wife can create severe hardships for the husband and his relatives.

Criticism against reconciliation

From the very start of the divorce proceedings, the endeavor is made for the reconciliation of the parties. ‘Restitution of conjugal rights’ is the main and important provision for the reconciliation of parties to the marriage. Under this provision, the party which has withdrawn himself/herself from the society of the other without a reasonable excuse, have to cohabit with him/her.

Criticism against this provision has also been raised. In Harvinder Kaur vs Harmander Singh Choudhry on 15 November 1983, an issue been raised that section 9 of HMW i.e., “Restitution of conjugal rights”, violates Articles 14 and 21 of the Constitution of India. It was pleaded that restitution of conjugal rights coerces the unwilling party to have sex with the decree-holder. But it was held that section 9 of HMA is fully valid and constitutional, as there is nothing wrong if the law enforces cohabitation, i.e. living together. It does not and cannot enforce sexual intercourse. That the Court enforces sexual ‘intercourse is a mistaken notion.

Investigation Agencies and Women Cells

In marriage, sex business is not hurried and beastly. It is a biological necessity. It is fundamental to the marriage institution in the accepted and understood sense. The restitution decree is essentially an attempted reconciliation. And it is necessary for a marital relationship, for the husband to perform the duties of a husband towards his wife and for the wife to perform the duties of a wife towards her husband. Sex is not a summum bonum in a marital relationship.

Investigation agencies and women’s cell officers try their level best for the reunion of parties and to dissolve the matter. Many times these efforts, make the husband and wife to end up with a peaceful compromise or a divorce by mutual consent under section 13B of HMA. In the hope of reconciliation of parties, any divorce petition cannot be filed before the expiration of one year immediately after the solemnization of marriage.

Judicial Separation

There is also an alternative to divorce which is ‘judicial separation’. If the court decree for judicial separation, then it is not obligatory for the petitioner to cohabit with the respondent. The petitioner can withdraw himself/herself from the society of the respondent and can live separately. But if there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation, it can become one of the grounds for divorce.

Claiming maintenance

In most of the divorce proceedings, the first and foremost attempt/wish of the litigants is for claiming maintenance. There are various laws available that can be invoked for claiming fair maintenance such as:

  • Sections 24 and 25 of HMA,
  • Sections 36 and 37 of SMA,
  • and Section 18 onwards in Hindu adoptions and maintenance act,1956.

But the most effective provision for claiming maintenance is provided in section 125 of CRPC. However, it is a gender-biased provision as only wives can claim maintenance under it. Husbands can claim maintenance under provisions provided in HMA and SMA. Basically section 125 of CRPC is for the protection of women and for women empowerment. The main condition behind claiming maintenance is that the claiming party has to prove that he/she is unable to maintain himself/herself as in toto income/property is not sufficient.

Cruelty and Dowry as a cause of the dispute

Other considerable reasons for desertion between husband and wife are ‘dowry demand’ and ‘Domestic violence’. Demanding of dowry by husband and his relatives from wife and her relatives is a very serious and profound issue in Indian society.

Treating wife with cruelty, torturing her badly on trivial incidents, including physical, mental, and sexual abuse is very heinous and barbarous. In some cases, this torture is of that extent which makes women so weak as she even commits suicide. Provisions such as The Dowry Prohibition Act,1961and sections 498A and 304B of IPC protects women against these offenses.

Marital relationship is a domestic relationship, in this type of related parties to the marriage lives in a shared household due to which physical, mental and sexual abuses are preferably possible against the wife, especially the wives who are a homemaker. Remedies such as monetary reliefs, medical allowances, residence orders, compensation orders are available for the protection of women against these abuses.

Protection of Women from Domestic Violence Act, 2005

Live-in relationships are a trending aspect of the modern world, but violence pertaining to this kind of relationship is not covered under the DV act because these relationships would not fall within the meaning of ‘domestic relationship’ defined under section 2(f) of DV act. In Indra Sarma vs V.K.V.Sarma on 26 November 2013, it is clearly stated that DV act deals with matters in which two persons  (of the opposite sex) who live or have lived together in a shared household when they are related by:

  1. Consanguinity
  2. Marriage
  3. Through a relationship in the nature of marriage
  4. Adoption
  5. Family members living together as a joint family.

Lacunas in Protection of Women from Domestic Violence Act, 2005

Provisions laid under the DV act are not for mistresses which is a serious concern. Sadly it’s a big lacuna in Indian laws. Parliament must bring in proper legislation and remedial measures to protect paramours against violence.

Another lacuna in Indian legislation is of “Child Custody”. In family disputes, children suffer the most. It is very difficult for a minor child to live a happy life while his/her parents and family contesting various civil and criminal suits in court. This directly affects that particular child mentally and emotionally. It would be very difficult for a child to peacefully carry-on his/her studies and education during such kind of a situation.

Custody of Children

Sections 26 and 38 of HMA and SMA respectively, tell us about custody of children in divorce cases. Wishes of children are preferred as well as what the court finds just and proper for their maintenance and education. Accordingly, changes may take place from time to time. In cases of small babies, custody is preferred to the mother only. The other parent is allowed to meet the child from time to time. The Hindu minority and guardianship act,1956, deals with guardianship of minors and adopted children. The welfare of minors is the paramount consideration. Lacunas in laws relating to children is a very serious concern. The parliament must take account of this and should bring in appropriate legislation.

(Basically all family laws are governed by The code of civil procedure,1908. And in the cases of frivolous litigation, the courts must take appropriate legal actions by invoking section 193 and 209 of IPC)


Author:

nikhil singh Nikhil Singh | Maharaja Agrasen Institute of Management Studies, Rohini, Delhi

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