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Showing posts with label alimony. Show all posts
Showing posts with label alimony. Show all posts

Wednesday, 4 September 2013

Bill without benefits

The Marriage Laws (Amendment) Bill is aimed at addressing two different concerns — making divorce easy and protecting the economic rights of women, but succeeds in doing neither
Though the Marriage Laws (Amendment) Bill, 2010, passed by the Rajya Sabha last week, granting some women a limited right in their husband’s property, is a step in the right direction, it falls short of expectations. The right has been extended only to Hindu women and those who marry under the Special Marriage Act and whose husbands have filed for divorce on the ground of marriage breakdown. What was needed was a separate statute (like the Protection of Women from Domestic Violence Act) to protect the economic rights of all married women and not just of a privileged few, and that too through convoluted clauses.
The Marriage Laws (Amendment) Bill is aimed at addressing two different concerns — making divorce easy and protecting the economic rights of women, but succeeds in doing neither. To waive the statutory six month “cooling period” for securing a divorce by mutual consent, when both parties desire it due to hardships caused to them, one did not need a major law reform. The family courts across the country were routinely doing this in cases where the parties made a joint application explaining the hardship. In 2002, a three-judge bench of the Supreme Court in the Anjana Kishore vs Puneet Kishore case had directed the courts to do away with this provision. The higher judiciary was also granting divorce on the ground of breakdown of marriage in specific cases of protracted litigation. In 1995, in the Romesh Chander vs Savitri case, the Supreme Court, while upholding the principle of marriage breakdown, had directed the husband to transfer the matrimonial home to the wife’s name at the time of divorce.
Even while puncturing holes in the bill, one must admit that it is an improved version of the earlier bill introduced unceremoniously in the Rajya Sabha in August 2010 and later referred to the Joint Select Committee. The urgency for the 2010 bill was to rectify the harmful precedent set by a ruling of the Supreme Court which concerned the daughter of Sushil Kumar Shinde, the Union home minister. The Supreme Court had, in 2009, upheld the ruling of the Bombay high court which had set aside an irregular divorce granted by the family court of Mumbai under rather peculiar circumstances, disregarding the provisions of law. So a bill was hastily introduced, touted as a “women friendly” bill as it would make divorce easy for women despite the fact that it did not make any financial provisions to safeguard their rights. Not surprisingly, the bill received the support of men’s rights groups, which, in itself, ought to have been a warning signal.
Proverbially, one swallow does not a summer make. The need to obtain a quick divorce and “move on in life” is a luxury enjoyed by only a microscopic minority of women who are independent with sufficient means or family backing. For the rest, marriage is an economic partnership, and its dissolution, especially one that disregards their non-monetary contribution to the household in the form of unpaid labour, deprives them of their shelter and sustenance, rendering them destitute. In fact, most women approach the courts for maintenance under Section 125 of the Criminal Procedure Code when they are abandoned by their husbands. When orders are passed in their favour, the husbands file divorce proceedings to spite them. But under the present system, the husband has to prove cruelty or desertion, which even in the hands of the most astute lawyers is not easy. It is at this stage that the woman gets an opportunity to negotiate for her economic rights and a husband, eager to obtain a divorce, may be willing to negotiate a lump sum financial settlement. But if divorce becomes a certainty, women will be deprived of this negotiating power and the state would then have to step in and make a statutory provision to make their lives financially secure.
Rather unfortunately, this dire need to protect women was overlooked by the various law commissions while recommending the introduction of irretrievable breakdown of marriage within the Indian context, though all countries which they mention in support of their recommendations have a property division clause attached to the breakdown clause. The first official mention of this provision is found only in the Report of the Joint Select Committee submitted to the Rajya Sabha in March 2011, after several women’s groups made written and oral depositions before it.
But the present bill has several provisions which are counterproductive. It stipulates that if a petition for divorce is pending before a court for over three years, the courts have the power to dissolve the marriage. But the provision to keep a petition pending for three years is not available in law as it lapses at the end of 18 months. Soon after a petition lapses, the party desiring divorce can file on the ground of marriage breakdown without having to wait for a further period of one-and-a-half years.
Second, even for obtaining divorce on “no fault ground”, evidence would have to be led to prove the three years separation. To make matters worse, it allows a period of not more than three months of cohabitation in between. Third, in order to avail of the provision of property division, the wife would have to file a separate “petition” rather than a simple “interim application”.
And the most contentious issue — adequate provision to remedy the hardship caused to the wife, would need lengthy and elaborate trial. If the couple could reach a consensus, they would have opted for a divorce by mutual consent. The fact that it has reached a stage of invoking the ground of breakdown of marriage is a sure sign that it will lead to protracted litigation. The courts would then have to determine what is “self acquired”, what is ancestral and the notional value of “heritable” property as compared to other heirs and use the living standard criteria to ascertain undisclosed wealth — all this is a nightmare for any trial court judge.
It would have been simpler to declare that all property acquired by husband at the time of marriage or in the course of marriage be deemed as “joint property” to be divided at the time of divorce, with an additional clause to secure the wife’s rights in the matrimonial residence, as is done in Britain and other Commonwealth countries. This simple solution, along with a state scheme to prevent destitution of all abandoned women whose husbands do not own property, nor have any means of livelihood, would have been beneficial.
The writer is a women’s rights lawyer
 

Tuesday, 6 August 2013

Lured by compensation money, more girls make 'fake rape claims'

Lured by compensation money, more girls make 'fake rape claims'

RANCHI: An Odisha girl, who earlier claimed that she was raped near Hatia railway station on July 23 and also that she was a minor, admitted to have cooked up the story to secure compensation after her medical reports false revealed that she neither raped nor was she a minor.

A team of doctors headed by Dr Tulsi Mahto conducted bone age test on the girl at Rajendra Institute of Medical Sciences and reported that she was 19 years old and three months' pregnant.

Counsellor Seema Sharma, who was appointed by Jharkhand State Commission for Protection of Child Rights (JSCPCR) for examining her case, said the girl admitted that she was not raped and had falsely implicated one Pappu Kumar to make her claims look genuine. She said, "The girl revealed that she has been married for the last three years but her husband left her, few months ago. She is pregnant with the child of another man who lives in her neighbourhood. She also said that she lied under parental pressure."

Jagganthpur police station OC Anil Kumar said an FIR had been lodged in the case but when the medical reports arrived and it was found that the girl was lying, the case was closed. He said, "Initially, we lodged an FIR in the case but when JSCPCR and the hospital informed us that the girl is an adult and she was lying about being raped we closed the case"

Member of JSCPCR, Sanjay Mishra said false rape claims have become common, these days. "When we were investigating the Pakur case, where four school girls were gang-raped and compensation of Rs.1.20 lakh was awarded to all these girls, local residents told me that I will get to attend a rape case every day thereafter. No doubt the very next day two girls returned from Delhi claiming that they were raped which turned out to be a fake case again," he added.

Mishra further said it is the compensation money which forces girls to lodge false rape cases under pressure from their guardians. "Under the Schedule Caste and Schedule Tribe (prevention of atrocities) Act, 1989, there is provision of compensating a rape victim with Rs 1.20 lakh," said Mishra.

He added, "In all such cases, it was observed that the girl hailed from to a very poor family and her parents forced her to lie for compensation." 
 http://timesofindia.indiatimes.com/city/ranchi/Lured-by-compensation-money-more-girls-make-fake-rape-claims/articleshow/21633414.cms 

Friday, 19 July 2013

Study finds divorced women’s trauma in securing alimony

Study finds divorced women’s trauma in securing alimony

NEW DELHI: While the Cabinet's decision on Wednesday may appear tipped in favour of women, a recent study shows that seeking maintenance through courts is fraught with delays and requires deep pockets. The countrywide study shows that in nearly 50% cases women did not seek maintenance from their husbands either because they lacked resources (41.5% women had no income after separation while 27% earned less than Rs 2,000 per month) or were unaware.

The government has set the ball rolling for bringing in an amendment to the marriage legislation that will give a woman right to the inherited or inheritable marital property. The compensation amount will be decided by the courts. Divorced or separated women in India have to depend on maintenance since there are no laws for sharing of marital property. The proposed law seeks to correct that but activists feel it does this only half-heartedly.

A survey — based on 405 divorced and separated women across the country — says that getting justice from courts has always been a gamble for women. The survey is part of the book "Separated and Divorced Women in India: Economic Rights and Entitlements in India'' authored by senior lawyer and AIDWA legal convener Kirti Singh. Women's rights activists have been consistently demanding a comprehensive legislation that would provide a women equitable share to marital property.

The survey found that vast majority (almost 60%) were living in marital homes acquired by in-laws and a large number (71%) were forced to live with their families post separation. After the separation 41.5% had no income and 27.4% earned less than Rs 2,000 per month. Although 58.5% surveyed were able to work outside their home, their earnings were too low for them to survive independently.

"In India there is absence of laws for division of marital property, when a separation or divorce takes place, the male spouse usually walks away with all moveable and immoveable assets of the household. The government's decision is just throwing women at the court's discretion and we have found that courts have been conservative in their decisions,'' Singh said.

Of the total, 47.4% (almost half) did not ask for maintenance after divorce. The reasons range from not knowing that they are entitled to ask for maintenance, to not having money to approach the courts or wishing not to be dependent on the spouse. As many as 48.8% of these maintenance cases are pending; in 41.8% of the case smaintenace had been allowed and in 9.4% of the cases their applications were dismissed. In 89 cases where maintenance was allowed, only 12 women reported receiving a satisfactory amount.

Of the 60 women who answered the question on the quantum of maintenance awarded to them, those with no income at all received merely 13% of the salary on an average for financial support. So not only were women given short shrift, they were also forced to wait for a long time before they received the paltry amount. Only in 35.6% of the cases filed in court, was maintenance granted within a year. The rest took anywhere between one and five years.
http://timesofindia.indiatimes.com/india/Study-finds-divorced-womens-trauma-in-securing-alimony/articleshow/21155954.cms 

Monday, 8 July 2013

दुष्कर्म का मामला निकला झूठा

दुष्कर्म का मामला निकला झूठा

वरिष्ठ संवाददाता, बल्लभगढ़ :
सहायक पुलिस आयुक्त (एसीपी) सेंट्रल पूनम दलाल ने थाना सदर पुलिस को जेल अधिकारियों के खिलाफ दुष्कर्म के आरोप में दर्ज मुकदमें को रद करने के आदेश दिए हैं।
विदित हो कि 14 मई 2013 को जिला नीमका जेल के बंद दो महिला कैदियों उपाधीक्षक शाहिद खान पर बंद कमरे में दुष्कर्म करने तथा दो महिला वार्डनों पर दुष्कर्म के लिए प्रेरित करने का आरोप लगाया था। इस मामले में महिलाओं की शिकायत पर थाना सदर में भी मामला दर्ज किया गया। मामले की जांच सेंट्रल एसीपी पूनम दलाल को सौंपी गई थी। जांच के दौरान एसीपी ने जेल में करीब 65 कैदियों के बयान दर्ज किए। इस दौरान उन्होंने जेल के कर्मचारियों से भी बातचीत की। जांच के दौरान एसीपी ने जेल अधिकारियों के खिलाफ मामले को झूठा पाया। एसीपी ने अपनी जांच पूरी करने के बाद थाना सदर पुलिस को लिखित में मुकदमा निरस्त करने के आदेश दिए हैं। इसकी पुष्टि थाना सदर प्रभारी प्रशिक्षु आइपीएस अभिषेक जोरवाल ने भी की है।

http://www.jagran.com/haryana/faridabad-10538273.html 

Wednesday, 3 July 2013

What if you're in her shoes, SC asks rejecting man's divorce plea

What if you're in her shoes, SC asks rejecting man's divorce plea

New Delhi: A man's plea for divorce on the grounds that their marriage is beyond salvage and that he will pay a substantial alimony to his wife has been dismissed by the Supreme Court saying that the husband would have never accepted dissolution of matrimonial ties had the wife raised identical reasons.
The court made the observation while rejecting the plea for divorce by the husband who had contended that though his wife's mental condition was normal, they have been separated for over 12 years and as such their marriage has irretrievably broken down. Also he said that he is willing to pay his wife any amount determined by the court as alimony.
A bench of justices P. Sathasivam and J.S. Khehar said he cannot be granted divorce "for the simple reason that the breakdown is only from the side of the husband" while the wife has consistently maintained that her paramount desire was to rejoin her husband."
"We would in our endeavour to determine the issue in hand examine the matter by reversing roles of the parties. We will examine the matter as if the wife had approached the Family Court seeking divorce on the ground that her husband had suffered brain damage leading to cognitive deficiencies.
"Yet, despite the said deficiencies, his working memory had returned to ‘near normal’ after treatment. "And his mental condition was such, that it would not have any effect on his matrimonial obligations. And the wife's family is agreeable to pay an amount to be determined by this court, so as to enable their daughter to break away, and find a more suitable match.
"Should she have been granted freedom from her matrimonial ties, in the given facts, in order to do complete justice to the parties? We would ask ourselves, whether the husband would have accepted such a plea...?" The court said, "In such situation, if this Court had, in exercise of its jurisdiction under Article 142 of the Constitution of India, granted compensation to the husband and had dissolved his marriage on the pretext of doing complete justice between the parties, would the same be acceptable to the husband? "We have no doubt in our mind, that on a reversal of roles, the husband, without any fault of his own, would have never accepted as just, the dissolution of his matrimonial ties, even if the couple had been separated for a duration, as is the case in hand," the bench said.
It also said the medical condition of the wife, on which the man had based his claim for divorce, was "of his own doing."
The apex court's order came on the appeal by the husband, who had challenged the decision of the Family court in Hyderabad and the Andhra Pradesh High Court which had rejected his plea for divorce from his wife.
The couple were married in 1997 when they were barely out of their teens.
After his wife's second pregnancy resulted in her suffering some mental disorder due to medical complications, he had moved the Family court in 2002 seeking divorce on the ground that she was not mentally sound.
The trial court had refused to grant him any relief saying that apart from his and his family's contentions that she had not recovered, there was no other evidence to support their claim.
The court also noted that as per medical professionals who had examined her, the woman's mental condition was found to be ‘normal’ and also that she was capable of discharging her marital obligations.
The high court had upheld the view of the trial court, and he had moved the apex court. He had contended before the apex court that they have been separated for over 12 years, their marriage is beyond salvage and as he is willing to pay a court determined amount as alimony, their marriage should be dissolved.
The apex court while refusing to grant him relief noted that "we cannot persuade ourselves to grant a decree of divorce, on the ground of irretrievable breakdown of marriage, for the simple reason that the breakdown is only from the side of the husband. The wife has consistently maintained, that she was intensely concerned with her future relationship with her husband, and that, her greatest and paramount desire was to rejoin her husband."
The bench also said that it was the husband himself who was ‘responsible for the state of affairs of his wife’.
 
 

पत्नी ने प्रेमी संग मिल रची थी हत्या की साजिश

पत्नी ने प्रेमी संग मिल रची थी हत्या की साजिश

रायबरेली, संवाददाता : मिल एरिया पुलिस ने शनिवार को असलम हत्याकांड का खुलासा कर दिया। हत्यारोपी पत्‍‌नी नसरीन, उसके प्रेमी रोहन समेत चार लोगों को जेल भेजा गया है। मामले में एक आरोपी अभी फरार चल रहा है। पुलिस अधीक्षक राजेश पांडेय ने मिल एरिया पुलिस को ढाई हजार रुपये का पुरस्कार देने की घोषणा की है।
एसपी ने वारदात का खुलासा करते हुए बताया कि दो मई को कल्लू का पुरवा निवासिनी नसरीन (18) पुत्री अजीज का निकाह हरदासपुर निवासी असलम (22) पुत्र मो. रसीद के साथ हुआ था। नसरीन का तकरीबन डेढ़ वर्ष से रोहन शर्मा पुत्र श्रवण कुमार निवासी कल्लू का पुरवा के साथ प्रेम प्रसंग चल रहा था। शादी के बाद भी नसरीन रोहन से बात करती थी, जो कि असलम को नागवार लगता था। असलम ने कई बार नसरीन को समझाया और पीटा भी, लेकिन बातचीत बंद नहीं हुई। नसरीन ने पिटाई की बात रोहन को बताई। रोहन और नसरीन ने मिलकर असलम की हत्या की साजिश रची।
22 जून को नसरीन ने फोन करके असलम को सहेली के घर चलने की बात कहकर बुलाया। वह असलम को लेकर त्रिपुला के पास पेट्रोल पंप के पीछे बने मकान में ले गई। यहां पहले से रोहन व उसके साथी अंशु शर्मा पुत्र पवन शर्मा निवासी कल्लू का पुरवा, अतुल कुमार दीक्षित पुत्र रमाकांत दीक्षित निवास लहुरिया कोड़रस बुजुर्ग और संजय मौजूद थे। असलम को कमरे के भीतर ले जाने के बाद नसरीन ने रोहन को बुलाया। रोहन को सामने देख असलम को गुस्सा आया और उसने दोनों की पिटाई कर दी। तभी अंशू, संजय और अतुल आ गए। रोहन ने नसरीन को दूसरे कमरे में भेज दिए। फिर चारों दोस्तों ने मिल कर आटो के एक्सीलेटर वायर से असलम का गला कस दिया। असलम बार-बार जान बख्शने की गुहार लगा रहा था लेकिन रोहन बेरहम हो गया और उसको मौत के घाट उतारने के बाद ही रुका। बाद में नसरीन को बाइक से उसके घर भेज दिया गया। रोहन, संजय और अतुल ने असलम के शव को आटो की डिग्गी में डाला और फतेहपुर के हुसैनगंज में नहर में फेंक दिया। 23 जून को उसका शव व एक्सीलेटर वायर हुसैनगंज पुलिस ने बरामद किया।
सीओ सदर पंकज पांडेय और मिल एरिया एसओ मनोज मिश्र ने मामले की तहकीकात शुरू की। नसरीन को हिरासत में लेते ही पूरा मामला सामने आ गया। बाद में रोहन, अतुल और संजय को पुलिस ने गिरफ्तार कर लिया। असलम हत्याकांड में गिरफ्तारी सभी आरोपियों की उम्र 18 से 24 वर्ष के मध्य है।
गलती हो गई..
पति की हत्यारोपी नसरीन पुलिस आफिस में रो पड़ी। बोली, गलती हो गई। मुझे नहीं पता था कि इतनी बड़ी गलती करने जा रही हूं। भावावेश में आकर गलत कदम उठ गए। इसके लिए मैं कभी खुद को माफ नहीं कर पाऊंगी।

http://www.jagran.com/uttar-pradesh/raebareli-10520744.html

Monday, 1 July 2013

India’s 498a Law – The Abuse Continues

 India’s 498a Law – The Abuse Continues 


In a landmark decision in 2010, Preeti Gupta v. State of Jharkhand, the Supreme Court of India lambasted the prevalent abuse of the infamous Section 498a of the Indian Penal Code law demanded that the legislature should change the law and directed that a copy of its decision be sent to the Law Commission of Indian the hope that the legislation might be amended.

The Law Commission issued a report in August 2012, calling for quite modest changes in the law. However, even those changes have not yet been enacted.

In Gupta the Supreme Court demanded that lower courts intervene to prevent the rampant consequential abuse of process, which has “led to enormous social unrest affecting peace, harmony and happiness of the society”; ruled that “most” 498a cases are filed in the heat of the moment over trivial issues without proper deliberations; asserted that many such cases are not bona fide, that many are filed with an oblique motive, and that many are filled with exaggerated or false claims; explained that these cases “can lead to insurmountable harassment, agony and pain to the accused and to his close relations” and “immense sufferings for all concerned;” and stated further that an ultimate acquittal may “not be able to wipe out the deep scars of suffering of ignominy.”

Meanwhile the abusive conduct continues. The Law Commission reported that in 2010 there were at least 340,555 cases under Section 498-A that were pending trial in various courts towards the end of 2010 and that there were as many as 938,809 people who were implicated in these cases. The reason that there were almost three times as many people accused as there were cases is that the law expressly authorizes a wife (but not a husband) to ask the police to bring charges against all of the relatives of her husband who may have participated in the alleged acts of cruelty.

We have commented previously on this law, that was well-intentioned in its enactment but which is frequently misused in India as a means of blackmailing non-resident Indian husbands. http://www.international-divorce.com/Indias-Notorious-Section-498A.htm.

http://www.internationalfamilylawfirm.com/2013/06/indias-498a-law-abuse-continues.html 

Saturday, 29 June 2013

Lump sum payment received from Ex-husband against relinquishment of monthly maintenance not taxable: Tribunal

Lump sum payment received from Ex-husband against relinquishment of monthly maintenance not taxable: Tribunal

MUMBAI: Marriages are made in heaven, but a divorce happens on earth and with it comes the inevitable question of alimony and its tax implications. In a recent decision the Delhi Income-tax Appellate Tribunal (ITAT) has held that a lump sum payment received from a former husband, against relinquishment of monthly maintenance is a capital receipt and is not taxable.

The case relates to a Delhi-based woman, who had received a lump sum of $99,000 from her ex-husband based in the United States, but had not shown the amount in her tax declaration. Based on current exchange rate this sum translates to approximately Rs. 60 lakh.

Under Indian tax laws, any sum of money received by an individual without any consideration (without getting anything in return), in excess of Rs 50,000 in a year, is taxable. But if the same is received from a relative, such as a spouse, or on certain occasions such as marriage, it is exempt.

The tax officer, in this case, had held that as the divorce had taken place several years ago, the Delhi-based resident was not a 'relative' and hence such payment was not exempt but taxable as 'income from other sources' in her hands. This approach adopted by the tax officer, was rejected at the first level of appeal - commissioner of income-tax (appeals).

The commissioner held that the amount was paid by way of alimony only because they were husband and wife. Thus the payment received was from a relative (which includes spouse).

Further it cannot be said that the lump sum amount was received without any consideration. It was received against relinquishment by the wife of her right to receive monthly alimony payments (both past arrears and future payments). Such monthly payments were provided for in the divorce agreement.

Hearing an appeal filed by the tax officer, the Delhi ITAT upheld the order of the CIT (appeals). It observed that: "In this case, the taxpayer was to receive monthly alimony which was to be taxable in each year. As such monthly payments were not received they were not offered for tax as income. The lump sum received by the woman was a consideration for relinquishing all past and future claims." It was a non-taxable capital receipt not liable to tax, concluded the ITAT.

"Tax on alimony payment cannot be avoided by merely taking a lump sum consideration. Various facts such as the period of time the monthly alimony was not received, action taken for receipt of such alimony, and the fact pattern of the final settlement by way of lump sum payment will determine whether it will be treated as non-taxable," cautions a civil advocate, attached to the Mumbai high court.

http://timesofindia.indiatimes.com/india/Lump-sum-payment-received-from-Ex-husband-against-relinquishment-of-monthly-maintenance-not-taxable-Tribunal/articleshow/20823480.cms?