Best Divorce Lawyer in Delhi. Divorce cases involve the legal dissolution of a marriage, often involving complex emotional, financial, and logistical issues. Here’s an overview of divorce cases: Types of Divorce Cases: Divorce Case Process: Issues in Divorce Cases: Divorce Case Outcomes: By understanding divorce cases, individuals can better navigate the complex and emotional process of divorce.
Types of cases addressed in family courts
ommon cases heard in family courts India is one of the countries with the largest population, due to which there are many married couples in the country. While having this large number of married couples, there will be more chances of having more cases of disputes between the couples and their family. And for seeking remedy they will surely approach the courts. In India, the family court can accept the appeals for grant of decree of divorce under various acts like Dissolution of Muslim Marriage Act, 1939, Muslim Women (Protection of Rights on Divorce) Act, 1986, the Parsi Marriage and Divorce Act, 1936, the Divorce Act, 1869, the Special Marriage Act, 1954, Foreign Marriage Act, 1969 etc. For the dissolution of Hindu marriage, one can file an appeal for divorce under Hindu Marriages (validation of proceedings) Act, 1960. In the case of Reddy Anada Rao v. Ms Totavani Sujatha, the appellant and the respondent were living their life by following Christian religion but they got married as per the Hindu rituals in a Hindu temple. The appellant i.e. the husband claimed that he was forced to marry the respondent therefore, he appealed for the dissolution of his marriage and to set aside his marriage certificate. The question was raised by the office of the family court that the marriage was itself null and void as per the provisions of Hindu Marriage Act, 1955 so there is no need for the suit. The judge held that the appeal for dissolution of marriage is not maintainable in the family court as Section 5 and Section 11 of the Hindu Marriage Act has clearly laid down that the marriage is null and void if it has been done with coercion or without the consent of any party. Later, the husband appealed in the High Court for which the court held that as per the Explanation (a) of Section 7 of Family Courts Act, 1984, the family court has jurisdiction in the concerned matter. As per the provisions of this act, the family court has jurisdiction over the disputes arising out of the marriage of any caste or creed. The explanation (g) in Section 7(1) provides that the family court has jurisdiction to grant the custody of the child to a proper person and to make that right person the guardian of a minor. The cases related to the custody of the child are filed before the family court where he usually resides. For example, if the father is residing in Uttar Pradesh and the mother along with the minor child is residing in Mumbai and the father wants to have custody of the child then he has to file the case in Mumbai’s family court. Thus, the family court has exclusive jurisdiction over child custody cases. The family court has also the power to accept the petitions made under the Guardian and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. The family courts act has not specifically mentioned the jurisdiction of the family court in matters of domestic violence. And this is the area where family courts are lacking. Though the act hasn’t made any provision related to the matters of domestic violence. However, there is a provision under the Protection of women from Domestic Violence Act, 2005(hereinafter DV Act), according to which the family court can entertain the matters related to domestic violence. The DV Act is not wholly a criminal law; it has also granted powers to the civil and family courts. As per Section 26 of the DV Act, the victim can not only claim relief from the Magistrate but also from the family court and other civil courts. In the case of Sudhannya K.N. vs. Umasanker Valsan (2013), the Kerala High Court discussed the scope of DV Act and held that the scope of DV Act is wide as it guarantees rights to women to approach either magistrate or family court for filing suit according to her comfort zone. The court also held that the family court has the power to pass the interim protection orders as well as interim residence orders under Section 26 of the DV Act. However, Section 26 is not used adequately because the powers of the family court are not properly described as in the matters related to domestic violence and also the family courts are not clear about their jurisdiction under Section 26 of the DV Act. Due to this, most of the victims approach the Magistrate instead of the family courts. Under the family court act, explanation(f) of Section 7(1) clearly provides that the family courts have jurisdiction over the suits or proceedings for maintenance. Also under Section 7(2), the family courts have the power to exercise a jurisdiction which is exercised by a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure, 1973, which is related to maintenance of wife, children and parents. This means the family courts can grant maintenance under Section 125 of CrPC. The Supreme Court recently in the case of Rana Nahid v. Sahisul Haq Chisti (2020) has given a contrasting judgement over the jurisdiction of the family court under Muslim Women (Protection of Rights on Divorce) Act, 1986 (1986 Act). The facts of the case are: a Muslim woman moved to the family court of Ajmer under Section 125 of CrPC for claiming maintenance from her husband as she was harassed for dowry and was thrown out of the home. The family court accepted the application made under Section 125 of CrPC, as an application under Section 3 of the 1986 Act. The family court ordered the husband to pay Rs 3 Lakh to his wife and Rs 2000 every month for the maintenance of his child. The husband moved to the High Court against the order of the family court and questioned the jurisdiction of the family court under the 1986 Act. The High Court held that the family court has no jurisdiction to pass such an order under the 1986 Act. However, the petitioner can approach the Court of competent Magistrate under Section 3 of the 1986 Act. The wife approached the Supreme Court against
Bail or Jail – The Supreme Court clarifies the law and lays down the guidelines
INTRODUCTION The Supreme Court of India has in its recent landmark judgment in Satender Kumar Antil[1] laid down guidelines on the grant of bail to an accused and while doing so, it has reiterated aspects of personal liberty and constitutional guarantees available to an accused under criminal jurisprudence. The Court observed that while its discussion and findings are meant to operate as guidelines, each case pertaining to a bail application is to be decided on its own merits.[2] This article seeks to analyse these guidelines and evaluate their consequences and operation in practice. GUIDELINES WITH RESPECT TO DIFFERENT CATEGORIES OF OFFENCES The judgment has categorised offences into four different categories and has observed that these guidelines would operate upon the satisfaction of two conditions i.e., (a) that the accused was not arrested during the investigation and that (b) the accused co-operated throughout in the investigation including appearing before the Investigating Officer (“IO”) whenever called. These four categories are:[3] A. Offences punishable with imprisonment of 7 years or less not falling in category B & D. B. Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years. C. Offences punishable under Special Acts containing stringent provisions for bail like NDPS (s.37), PMLA (s.45), UAPA (s.43D(5), Companies Act, 212(6), etc. D. Economic Offences not covered by Special Acts. With respect to Category A, the Guidelines appear to be comparatively lenient to the Accused, given the lesser gravity of the offences involved. Here, after filing of the charge sheet or the complaint taking cognizance, ordinary summons must be issued at the first instance including an appearance through lawyer. However, if the accused does not appear despite service of summons, then a Bailable Warrant for physical appearance may be issued. Again, if the accused fails to appear despite issuance of bailable warrant, a non-bailable warrant will be issued. Such non-bailable warrant may be converted by the Magistrate into a bailable warrant/summons without insisting on physical appearance of the accused, if the accused moves an application before execution of the non-bailable warrant on an undertaking to appear physically on the next date of hearing. Once an appearance is made in Court, bail applications may be decided without taking such accused into custody or by granting interim bail till the bail application is decided. With respect to Categories B and D, the bail application will be decided on merits on appearance of the accused in Court pursuant to process being issued. Furthermore, as far as economic offences are concerned, the Supreme Court observed that to determine whether or not to grant bail, two aspects need to be considered i.e., seriousness of the charge and severity of the punishment. In the context of white-collar crimes, the aforementioned factors are usually considered to decide on bail applications. Finally, with respect to Category C, the guidelines are the same as Categories B and D with the additional condition of compliance with strict bail provisions under Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985; Section 45 of the Prevention of Money Laundering Act, 2002; Section 212(6) of the Companies Act, 2013; Section 43(d)(5) of the Unlawful Activities (Prevention) Act, 1967 and the provisions under the Protection of Children from Sexual Offences Act, 2012. OTHER BROADER GUIDELINES AS REGARDS THE GRANT OF BAIL In addition to the abovementioned guidelines, the Supreme Court also conducted a broader analysis of provisions of the Code of Criminal Procedure, 1973 (“CrPC”) and laid down certain other guidelines on the grant of bail (“CrPC”) as analysed hereinunder: i. Section 41/41A Notice and bail on its non-compliance As regards Section 41 of the CrPC, the Supreme Court has significantly observed that even for a cognizable offence, an arrest of the accused is not mandatory and that an arrest in offences punishable with imprisonment below seven years or extending to seven years can only be made if the IO is satisfied that there is a reason to believe that the accused committed the offence and that there is necessity for such an arrest. Pertinently, Section 41 mandates the IO to record the reasons while choosing to arrest/or not choosing to arrest. However, this is not required if the offence alleged involves imprisonment for more than seven years. The Supreme Court relied on its judgment in Arnesh Kumar wherein it was held:[4] “In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object will it serve? It is only after these questions are addressed that the power of arrest needs to be exercised…Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC”. Furthermore, the Court also held that in addition to the reason to believe, the satisfaction for the need to arrest shall also be present.[5] As regards Section 41A CrPC, it requires the IO to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). In this regard, the Court held that Sections 41 and 41A are facets of Article 21 of the Constitution and that any arrest in non-compliance of Section 41/41A CrPC would entitle the accused to bail. Further, the Court mandated all States and Union Territories to facilitate standing orders to comply with Section 41/41A and observed that the directions laid down in the Arnesh Kumar judgment had not been followed.[6]These guidelines clearly underline the intent of the Supreme Court to ensure procedural safeguards are complied with and any non-compliance is sufficient to grant bail to the accused. ii. Default bail under Section 167(2) CrPC Section 167 of the CrPC pertains to the procedure when an investigation cannot be completed in twenty-four hours and also provides the maximum period of time to complete an investigation i.e.,
