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Category Archives: Divorce

8 months ago Divorce , Uncategorized

reason for Divorce in India

What is the reason for Divorce ?

This is an opinion based article about the major causes of divorce, written after years of working with divorcing clients. There is no scientific research to back up what I’m about to share, just thoughts and opinions I’ve gathered during my career as a Divorce Coach/Consultant.

 Lack of Communication Skills:

Pure and simple, people don’t know how to talk to each other and they know even less about listening. The most important conversations people have are with a spouse yet they put so little effort into wisely expressing their feelings and openly listening to their spouse.

High Expectations:

As Sam Walton said, “High expectations are the key to everything” unless of course, we are talking about marriage. Expectations and laziness can go hand in hand when it comes to predicting whether a marriage will end in divorce. There are may more can be written.

  • InfidelityRealizing one’s partner is unfaithful and cheating on you emotionally or sexually.
  • Societal norms or pressureFamily and society’s interference and un-acceptance of one another may be a cause for parting ways.
  • IncompatibilityClass, status, conduct, emotional and mental understanding of one another and life situations.
  • MisunderstandingOften we are unable to express or explain the cause of our behaviour or words. We might be scared but take it out as anger. There are also many other external forces that intervenes in our relationship leading to miscommunication and misjudgement of past and present equation.
  • Unfulfilled ExpectationsWe all have few expectations from our partner, we are also ready to adjust and compromise few things here and there, but in long run these unfulfilled expectations from the partner may lead to an unhealthy bond.
  • AbuseRelationship can be abusive in many ways be it emotional, sexual, physical or psychological in nature and lead to deteriorating of the relationship and eventually it’s end.

Such challenging and overwhelming situations can be dealt systematically and strategically in a therapy session where the aim is to help you overcome breakup as per your response and tolerance level and move towards emotional healing.

The package on moving -on after a break up deals with

  • Dealing with loss/change/void or emptiness
  • Dealing with overwhelming emotions
  • Dealing with self-blame or self-criticism
  • Rationalizing situation
  • Moving responsibly and with positive self-worth
  • Follow-up

Divorce Marriage Settlement Deed

Deed of Settlement in respect of Divorce of Marriage

SETTLEMENT DEED

THIS DEED OF SETTLEMENT has been executed between the parties on this ________ day of _______
______ son of _______, resident of ______ (hereinafter called the FIRST PARTY)
AND

______ Wife of _______ D/o _______ (hereinafter called the SECOND PARTY)
Do hereby enter into this final settlement as under:-

  1. That the first party was married with the second party on ____ at ____.
  2. That after the marriage both the parties lived together and cohabited with each other as husband and wife at the residence of the first party.
  3. The said marriage was the love marriage and was solemnized as per the sweet will of both the parties and the parents of both the parties had given their consent for the said marriage of both the parties. Hence no any dowry was taken or given by either party in the said marriage.
  4. That the parties to the marriage have been living separately from each other since ____ i.e. more than __ year.
  5. That since the very beginning of the marriage, due to the temperamental differences and due to the different natures and thoughts, both the parties could not adjust themselves with each other and it became quite impossible for the parties to live as husband and wife under one and the same roof. Both the parties have neither lived together and they have not cohabited with each other nor the petitioners have visited or stayed with each other since last more than __ year.
  6. That there is temperamental differences between both the parties hence they have decided to dissolve their marriage by way of filing of Petition Under Section __ of the __ Marriage Act for dissolution of the marriage by mutual consent.
  7. That during the stay with the first party, the first party did not adopt any cruelty upon the second party.
  8. That both the parties have settled all their disputes amicably.
  9. That it has been settled that the second party will not claim any amount on account of maintenance herself from the first party in future nor she will file any such case against the first party in any court of law for grant of maintenance nor file any criminal case against the first party.

    IN WITNESSES WHEREOF both the parties have signed this deed of settlement at ___

WTINESSES

1.

2.

FIRST PARTY

 

SECOND PARTY

 

Female Hindu to take in adoption

Capacity of a female Hindu to take in adoption

Any female Hindu-

(a) Who is of sound mind?

(b) Who is not a minor, and

(c) Who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption

Adoption law in India

Persons who may be adopted– No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely-

(i) He or she is a Hindu;

(ii) He or she has not already been adopted;

(iii) He or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;

(iv) He or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

Other conditions for a valid adoption– In every adoption, the following conditions must be complied with:

(i) if any adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son whether by legitimate blood relationship or by adoption) living at the time of adoption;

(ii) If the adoption is of a daughter the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(iii) If the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;

(iv) If the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;

(v) The same child may not be adopted simultaneously by two or more persons;

(vi) The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption. Provided that the performance of datta homan, shall not be essential to the validity of an adoption.

Effect of adoptions– An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.

Provided that-

(a) The child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

(b) Any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

(c) The adopted child shall not divest any person of any estate which vested in him or her before the adoption.

Right of adoptive parents to dispose of their properties– Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.

Determination of adoptive mother in certain cases– (1) Where a Hindu who has a wife living adopts a child she shall be deemed to be the adoptive mother.

(2) Where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall be deemed to be the adoptive mother and the others to be stepmothers.

(3) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the stepmother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the stepfather of the adopted child.

Valid adoption not to be cancelled– No adoption which had been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth,

Presumption as to registered documents relating to adoption

Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.

Prohibition of certain payments– (1) No person shall receive or agree to receive any payment or other reward in consideration of the adoption of any person, and no person shall make or give or agree to make or give to any other person any payment or reward the receipt of which is prohibited by this section.

(2) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment which may extend to six months, or with fine, or with both.

(3) No prosecution under this section shall be instituted without the previous sanction of the State Government or an officer authorized by the State Government in this behalf.

Maintenance of wife

Maintenance of wife law in India

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,-

(a) If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully Neglecting her;

(b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) If he is suffering from a virulent form of leprosy;

(d) If he has any other wife living;

(e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) If he has ceased to be a Hindu by conversion to another religion;

(g) If there is any other cause justifying her living separately?

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Maintenance of widowed daughter-in-law

Maintenance of widowed daughter-in-law

(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law.

Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance-

( a) From the estate of her husband or her father or mother, or

(b) from her son or daughter, if any, or his or her estate.

(2) Any obligation under sub-section (1) shall not be enforceable if the father in law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law.

Dependents Maintenance law in India

Maintenance of dependents

(1) Subject to the provisions of sub-section (2), the heirs of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased.

(2) Where a dependent has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependent shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.

(3) The liability of each of the persons who take the estate shall be in proportion to the value of the share or part of the estate taken by him or her.

(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependent shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part, the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.

Amount of maintenance law in India

Amount of maintenance

(1) It shall be in the discretion of the court to

determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the court shall have due regard to the consideration set out in sub-section (2) or sub-section (3), as the case maybe, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to-

  • The position and status of the parties;
  • The reasonable wants of the claimant;
  • If the claimant is living separately, whether the claimant is justified in doing so;
  • The value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source;
  • The number of persons entitled to maintenance under this Act.

(3) In determining the amount of maintenance, if any, to be awarded to a dependent under this Act, regard shall be had to-

  • The net value of the estate of the deceased after providing for the payment of his debts;
  • The provision, if any, made under a will of the deceased in respect, of the dependent;
  • The degree of relationship between the two;
  • The reasonable wants of the dependent;
  • The past relations between the dependent and the deceased;
  • The value of the property of the dependent and any income derived from such property, or from his or her earnings or from any other course;
  • The number of dependents entitled to maintenance under this Act.

Guardian appointed Law in India

Guardian not to be appointed for minor’s undivided interest in joint family

Property – Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest.

Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court the welfare of the minor shall be the paramount consideration.

Welfare of minor to be paramount consideration-

(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

Females Succession rights in India

What rights have been conferred on females by the amendments in?

Hindu Succession Act in the year 2005?

The Hindu (Amendment) Act of 2005 has conferred the following rights on

Females Succession rights in India:

Equal rights to daughter in co- parcenary property:

  • In joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the coparcerary property as she would have had if she had been a son, inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;

 

  • At a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allocable to a son:
  1. Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:
  2. Provided further that the share allot able to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be:
  • Any property to which a female Hindu becomes entitled by virtue of the provisions of clause a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

However, the aforesaid amendment shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken placed before 20th December, 2004.

Where a Hindu dies after the commencement of the Amendment Act, his interest in the property of a joint Hindu Family shall devolve by testamentary or intestate succession, as the case may be, and not by survivorship.

Before the Amendment of 2005 female heir could not ask for partition in respect of dwelling house wholly occupied by a joint family until male heirs chose to divide their respective shares therein. Now this provision has been omitted so as to remove the disability on female heirs. Thus a female heir can now ask for partition in respect of a dwelling house occupied by a joint family, irrespective, of the fact whether male heirs choose to divide their respective shares therein or not.

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